Peter Whelan | University of Leeds (original) (raw)

Books by Peter Whelan

P. Whelan (ed.), Research Handbook on Cartels (Edward Elgar: Cheltenham, 2023)

Combining a variety of perspectives, this accessible Research Handbook provides a comprehensive a... more Combining a variety of perspectives, this accessible Research Handbook provides a comprehensive and in-depth analysis of the most significant issues pertaining to the legal regulation of cartel activity.

Its interdisciplinary team of top scholars explores theoretical, legal, economic, political, and comparative discourse surrounding cartel regulation. Collectively, its chapters address the major economic, substantive, and procedural issues encountered in cartel law and provide practical insight into the experiences of numerous jurisdictions from across the globe concerning anti-cartel enforcement. Rigorous and authoritative, this Research Handbook captures the informed views of various stakeholders in the debate at hand, including those of competition law academics, competition law economists, practising lawyers, and competition law enforcers.

Oxford University Press, 2023

The first full-length monograph dedicated to the controversial EU doctrine of parental antitrust ... more The first full-length monograph dedicated to the controversial EU doctrine of parental antitrust liability.
Critically evaluates the legitimacy of parental antitrust liability from both positive and normative perspectives.
Advances a fully-rationalised, workable plan for reforming parental antitrust liability.

Oxford University Press

Cartel activity is prohibited under EU law by virtue of Article 101(1) of the Treaty on the Funct... more Cartel activity is prohibited under EU law by virtue of Article 101(1) of the Treaty on the Functioning of the European Union. Firms that violate this provision face severe punishment from those entities responsible for enforcing EU competition law: the European Commission, the national competition authorities and the national courts. Stiff fines are regularly imposed on firms by these entities; such firm-focused punishment is an established feature of the antitrust enforcement landscape within the EU. In recent years, however, focus has also been placed on the individuals within the firms responsible for the cartel activity. It is increasingly recognised that punishment for cartel activity should be individual-focused as well as firm-focused. Accordingly, a growing tendency to criminalise cartel activity can be observed in the EU Member States. In fact, in a number of EU jurisdictions, individual cartelists now face the real prospect of imprisonment if found guilty of cartel activity.

The existence of such criminal sanctions within the EU presents a number of crucial challenges that need to be met if the underlying enforcement objectives are to be achieved in practice without violating prevailing legal norms. For a start, given the severe consequences of a custodial sentence, the employment of criminal antitrust punishment must be justifiable in principle: one must have a robust normative framework rationalising the existence of criminal cartel sanctions. Second, for it to be legitimate, antitrust criminalisation should only occur in a manner that respects the mandatory legalities applicable to the European jurisdiction in question. These include the due process rights of the accused and the principle of legal certainty. Finally, the correct practical measures (such as a criminal leniency policy) need to be designed in order to ensure that the employment of criminal antitrust punishment actually achieves its aims while maintaining its legitimacy.

These three particular challenges can be conceptualised respectively as the theoretical, legal and practical challenges of European antitrust criminalisation. This book aims to analyse these three crucial challenges so that the complexity of the process of European antitrust criminalisation can be understood more accurately. In doing so, this book acknowledges that the three challenges should not be considered in isolation. In fact, it is the thesis of this book that there is a dynamic relationship between the theoretical, legal and practical challenges of European antitrust criminalisation and that an effective antitrust criminalisation policy is one which recognises and respects this complex interaction.

This book is of immediate relevance to academics who research in the field of competition law enforcement, as well as to students and practising lawyers who wish to understand the complexities of criminal antitrust sanctions and the problems that they engender. It is also aimed at important stakeholders in the process of European antitrust criminalisation, such as antitrust officials, legislators and the judiciary. While its target audience is a specialist one, this book contains analyses which would also be of interest to all of those who question the necessity and appropriateness of this increasingly popular approach to competition law enforcement.

Almășan and Whelan (eds), (Springer, 2017)

"Current Competition Law is the British Institute of International and Comparative Law's competit... more "Current Competition Law is the British Institute of International and Comparative Law's competition law yearbook; it contains a collection of papers and speeches given at the main CLF events during the year, in particular its annual conferences on merger control, competition litigation and transatlantic antitrust.

Papers by Peter Whelan

Chapter in Research Handbook on Competition Law Private Enforcement in the EU, Rodger, Marcos and Sousa Ferro (eds), (Edward Elgar, 2023)

This chapter examines the issue of imputing liability in the context of the private enforcement o... more This chapter examines the issue of imputing liability in the context of the private enforcement of competition law. It focuses specifically on the notion of imputing liability to a legal person for the EU competition law violation committed by another legal person within the same corporate group. The chapter thus evaluates the rules that National Courts in the EU Member States must follow with respect to subsidiary liability, parental liability, and sister liability when ruling on antitrust damages actions for breaches of Article 101 or 102 TFEU. It argues that, whilst EU-level jurisprudence has recently provided some clarification on imputation in private antitrust enforcement, as well as an explicit, useful legal foundation for the analysis of the applicability of these forms of liability, an evident lack of clarity remains with respect to some key issues.

Chapter in The Cambridge Handbook of Competition Law Sanctions, Tóth (ed.), (Cambridge University Press, 2022)

A. Introduction Cartel activity implies the existence of an anticompetitive agreement, concerted ... more A. Introduction Cartel activity implies the existence of an anticompetitive agreement, concerted practice or arrangement between competitors to fix prices, restrict output, divide markets or make rigged bids. 1 Such collusion represents the 'supreme evil of antitrust' 2 and strikes 'a killer blow at the heart of healthy economic activity'. 3 Its potential negative effects include increased prices for consumers, a reduction in output, a reduction in the incentive to innovate, and the existence of 'deadweight loss' (which occurs when consumers who would have purchased at the competitive price do not have their demand met). 4 As opposed to other types of market arrangements or conduct (such as, e.g., vertical distribution agreements or the unilateral use of market power), cartels are widely perceived by followers of modern economic thought to have little to redeem themselves. In fact, according to the International Competition Network ('ICN'), there exists a 'consensus' that cartel activity 'is devoid of procompetitive benefits'. 5 In the vast majority of jurisdictions around the world, therefore, cartels

Chapter in The UK Competition Regime: A Twenty-Year Retrospective, Rodger, Whelan and MacCulloch (eds), (Oxford University Press, 2021)

The enforcement of UK competition law is deterrence-focused and comprises both criminal and non-c... more The enforcement of UK competition law is deterrence-focused and comprises both criminal and non-criminal (i.e., civil/administrative) elements. This chapter critically evaluates a particular non-criminal enforcement mechanism that has been gaining increasing importance throughout the recent development of UK competition enforcement practice: the use of director disqualification. It first establishes the normative role of director disqualification in the UK's armoury of non-criminal antitrust sanctions (i.e., its complementing of the deterrent function of corporate antitrust fines), following which it highlights its potential for performing this role effectively. It then outlines the legal basis for the use of director disqualification within the UK and evaluates the policy and enforcement practice to date with respect to such orders, before proceeding to outline some of the insights that the UK director disqualification regime can provide to other jurisdictions. Ultimately it concludes that, on the basis of the promising, albeit nascent, UK experience to date, director disqualification should be seriously considered by jurisdictions that wish to operate a robust competition law enforcement regime.

[2022] 2 Antitrust Chronicle 37

Few would deny that the European Commission has an impressive track record with respect to anti-c... more Few would deny that the European Commission has an impressive track record with respect to anti-cartel enforcement. At present, however, a lacuna exists with respect to its enforcement powers: it cannot to impose fines on natural persons who are responsible for their companies’ cartel activity. This article argues that, in order to achieve the deterrence of cartel activity, the Commission should be invested with the power to impose individual administrative sanctions for violations of the EU-level cartel prohibition. Although such sanctions have a drawback in terms of their vulnerability to indemnification, the stigmatization policy currently pursued by the Commission with respect to cartel activity provides considerable scope to prevent the issue of indemnification from undermining the potential deterrent effect of individual administrative sanctions.

(2016) 81(1) Antitrust Law Journal 235

Chapter in The Procedural Aspects of the Application of Competition Law, Nagi (ed.), (Europa Law ... more Chapter in The Procedural Aspects of the Application of Competition Law, Nagi (ed.), (Europa Law Publishing, 2016, forthcoming)

Chapter 13, The Consistent Application of EU Competition Law - Substantive and Procedural Challen... more Chapter 13, The Consistent Application of EU Competition Law - Substantive and Procedural Challenges, Almășan and Whelan (eds), (Springer, 2016, forthcoming)

On 1 April 2014, section 47 of the Enterprise and Regulatory Reform Act 2013 (ERRA) entered into ... more On 1 April 2014, section 47 of the Enterprise and Regulatory Reform Act 2013 (ERRA) entered into force, ensuring signiﬁcant changes to the UK cartel offence. The criminal offence, contained in section 188 of the Enterprise Act 2002, was enacted to secure the deterrence of cartel activity affecting the UK. Following almost ten years of enforcement, the cartel offence had failed to live up to expectations. Consequently, following a public consultation, it was reformed in substance. Section 47 ERRA, removed the (controversial) deﬁnitional element of ‘dishonesty’ from the offence, created a number of ‘carve outs’ from the offence, and created three additional defences. This article examines in detail the speciﬁc reforms of the cartel offence and argues that, although considerable improvement has been made, the UK offence is fundamentally ﬂawed and unworkable in practice. Further reform is therefore advised.

There is considerable debate at present, particularly in the Member States of the European Union,... more There is considerable debate at present, particularly in the Member States of the European Union, concerning the necessity and appropriateness of imposing custodial sentences upon individuals who have engaged in cartel activity. The vast majority of those contributing to this debate have focused on the punishment theory of (economic) deterrence. Little room is devoted to the punishment theory of retribution or to consideration of the ‘moral wrongfulness’ of cartel activity. This article posits that the issue of ‘moral wrongfulness’ is a central issue in the debate on cartel criminalization, irrespective of whether it is deterrence theory or retribution theory that informs the debate. By employing a norms-based approach, this article then examines the extent to which cartel activity can indeed be interpreted as conduct that is ‘morally wrong’ due to its violation of the moral norms against stealing, deception and/or cheating. By doing so, this article not only challenges traditional views of the nature of cartel activity but also provides scholars, legislatures and policymakers with specific analyses which are crucial to a decision whether to justify (or indeed to oppose) the introduction and maintenance of criminal cartel sanctions.

There is a trend within the EU Member States to introduce criminal sanctions for cartel activity.... more There is a trend within the EU Member States to introduce criminal sanctions for cartel activity. Such criminalisation must respect the human rights of the accused. Unfortunately the literature on cartel criminalisation pays scant regard to the investigation of human rights issues. A comprehensive analysis of the impact of the principle of legal certainty (Article 7 ECHR) upon cartel criminalisation in the EU Member States is conspicuously absent from the literature. This article rectifies this deficiency by examining how this particular principle of European human rights law may impact upon the concept, substance and existence of a criminal cartel offence.

There is increasing debate within the EU concerning the imposition of criminal sanctions upon tho... more There is increasing debate within the EU concerning the imposition of criminal sanctions upon those individuals who engage in cartel activity. For it to be legitimate, such cartel criminalisation must respect the due process guarantees contained in the European Convention on Human Rights. Unfortunately the literature on this issue is deficient and the specifics of this legal challenge are not fully understood. In particular, a comprehensive analysis of the due process-related challenge presented when personal criminal antitrust sanctions are employed alongside administrative sanctions for a given cartel is conspicuously absent from the literature. This article rectifies this deficiency by examining this particular legal challenge and its relevance to information exchange, double jeopardy and concurrent antitrust proceedings. In doing so, it identifies practical techniques designed to meet the challenge of due process in this context, as well as the inherent tensions between due process and the objectives of European antitrust criminalisation.

"Ireland has increased the maximum custodial sentence that can be imposed on a convicted cartelis... more "Ireland has increased the maximum custodial sentence that can be imposed on a convicted cartelist from 5 to 10 years, has increased the maximum fines for competition offences and has introduced Director Disqualification Orders for non-indictable competition offences.

The increase in the maximum custodial sentence in particular has some potential to perform a signalling function to trial judges in Ireland regarding the seriousness of cartel activity and the need for the imposition of custodial sentences on cartelists.

Recent experience in Ireland demonstrates that juries may be prepared to convict alleged individual cartelists, even when their doing so may result in the imposition of a custodial sentence.

By no longer requiring plaintiffs in follow-on private actions to prove a breach of competition law, Irish law has also facilitated less burdensome private competition law enforcement."