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Title
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Mens rea in EU antitrust law : when intentions matter
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Author
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Abstract
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| The maxim actus non facit reum nisi mens sit rea expresses the idea that someone who committed an act prohibited by the criminal law can generally only be punished if he or she did so with a specific state of mind. The most serious offences are normally considered those that involve an intention to conduct oneself unlawfully or to cause an unlawful result. Usually the knowledge of the material elements of the offence is equated with intention. Even for strict liability and negligent offences, the perpetrator’s mental state is relevant as an aggravating or attenuating circumstance when meting out punishment. This dissertation analyses whether EU antitrust law takes this element into account and whether it should do so. According to the case law on Article 101 TFEU, the existence of an ‘agreement’ or ‘concerted practice’ is dependent on the external manifestation of the parties’ intentions as expressed between the parties. Although anticompetitive intentions are not necessary to establish a restriction of competition, they are relevant to assess the object of the agreement or practice. Under Article 101(3) TFEU, mens rea evidence can be a tool to verify the credibility of the claims made by undertakings. As regards the application of Article 102 TFEU, mens rea is not required to establish dominance. Depending on the type of abuse, intentions can play a more or less significant role: for some types of abuses (in particular predatory pricing but also some other pricing and exclusivity abuses), they are relevant or even determinative, whereas for other types of abuses (in particular multimarket abuses) they are hardly mentioned in the case law. Although Regulation 1/2003 entails a mens rea element for the imposition of a fine, this requirement is interpreted in a minimal way in the case law. In only few cases have the Commission and the European courts taken into account intentions as a relevant factor to modulate the fine. The arguments that have been made against using intent evidence in EU antitrust enforcement are not conclusive. On the contrary, because of the difficulties of conducting economic analyses of the effects of commercial conduct, it makes sense to look at the intentions of the persons engaging in that conduct to interpret their behaviour. Also for the punishment of anticompetitive behaviour, the presence or absence of anticompetitive intentions should be relevant. |
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Language
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English
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Publication
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Antwerp
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University of Antwerp, Faculty of Law
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2019
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Volume/pages
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343 p.
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Note
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:
Van den Bossche, Anne-Marie [Supervisor]
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Straetmans, Gert [Supervisor]
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Full text (publisher's version - intranet only)
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