The fining system in the enforcement of EU competition law: a time for reassessment?

Abstract

For over more than 50 years the EU Commission has used a deterrence approach in the imposition of fines to enforce EU competition law and pursue the EU competition policy. Although, it has adopted many other instruments to enhance its detection rate and provide more efficient and forward-looking outcomes in pro of competition; the aim to deter in order to achieve prevention has not changed. Nevertheless, empirical evidence has shown that the optimal deterrence framework based on the legal-economic theory is far from even deterring let alone prevent.

Criminology and behavioural economics have provided new insights that call for the adoption of a more realistic approach that seeks to elevate the perception of certainty of punishment by increasing the informal costs for individuals and undertakings’ subunits who can prevent competition law violations in the first place. In this regard, a compliance approach that seeks to elevate the immediate costs perception and create a monitoring network that can effectively influence social norms that constraint behaviour, is able to result in a culture of compliance that makes non-compliance a less likely option. By embracing instruments such as compliance programmes, designation of external monitors and availability of whistleblowing rewards among others, the social internalization of compliance norms is feasible and thus, prevention possible.

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