The Aggravating Circumstance of Recidivism and the Principle of Legality in the EC Fining Policy: Nulla Poena Sine Lege?

Abstract

The European Commission takes into account several factors when it imposes fines for the violation of Competition Law. Amongst them, the aggravating circumstance of recidivism is usually considered. However, no explicit legal provision for recidivism can be found in the primary or secondary legislation of the European Union. This situation could infringe the fundamental right and principle of Community Law that states that criminal law must be legally foreseen: the so-called principle of nulla poena sine lege. It seems worth analysing to what extent that principle is fulfilled by the European Commission and the European Courts. As a result of this research, it can be concluded that the EC enforcement of Antitrust Law poses serious doubts in relation to the principle of legality. Certainly, the Commission enjoys a broad discretion in its justification of competition fines and this has even been extended by judicial review. Such a state of affairs may be justified politically, but it is not legally acceptable. The principles of legality and legal certainty require a more transparent system. The influence of the ECHR and of the new bias towards criminalisation may improve this situation. This article has been shortlisted for the 1st World Competition Young Writers Award