Volume 29 (2006) / Issue 4
Based on the main results of the economics of punishment, an analysis of the elements necessary to set the optimal fine is carried out with specific reference to the hard-core cartels. Even though the lack of data hinders the exact application of the theoretical framework in the real world, it can still provide useful guidelines. Fining policies may be evaluated with regard to the achievement of the highest deterrent effect at the lowest possible costs In particular, with regard to the EC practice on fines, a possible source of inefficiencies could have been the “qualitative approach” lying behind the 1998 Guidelines. Once a deterrent sanction has to be set within the legal ceilings, the actual effect of the infringement (or a proxy of it) has to be taken into account, leaving aside the tendency to stick to legal categories. Moreover, if the methodology of such an assessment is clearly made public, the danger of uncertainty is wiped away, whereas legal categories have to be stretched in order to achieve results consistent with the deterrent aim and the proportionality constraint, with a consequent loss of transparency. The recent 2006 Guidelines on fines represent a major step forward on that matter. This article has been shortlisted for the 1st World Competition Young Writers Award.
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