Por ejemplo esta pectina tiene GE= 40% Y GA=20%
2. LA LONGITUD DE LAS CADENAS MOLECULARES, que está en relación directa con el peso molecular.
OF THE GENERAL PUBLIC
More than in other areas, in the field of white-collar crime there seems to be ambiguity with regard to the moral blameworthiness of the criminalized conduct.162
When the law criminally prohibits what the society regards as morally wrongful, the perception of the moral wrongfulness is further reinforced. This is referred to as the educative function of the law. This way a message is sent to the society that some behavior merits strong disapproval. Where such consensus between the criminal law and public opinion is absent ambiguity follows.163
Your average Joe could for example reason cartels in the following way: As the maximum financial profit is the goal of any business the situation where the consumers end up paying higher prices due to cartels could be viewed from the business point of view as a risk that is part of any trade whereby two parties make the exchange of goods and money and by consenting to this the paying party takes the inherent business risk and thus there would be a legitimate cause for the injury.164
Furthermore, the increase in prices may appear nominal to the average Joe. Therefore the average Joe might ask how strongly should the cartelists be reprimanded after all? Arguably the most opprobrious parts of cartels that deserve the legal condemnation exist at the macro level – so how could the average Joe then associate them with something criminal?165
For the lay people understanding the environment where white-collar offences take place is difficult. What may be even more challenging for the uninformed observer, is grasping what is criminal about white-collar crime as the white-collar crimes do not cause the visible result of bodily injury or someone being killed as a result of a physical assault or homicide. The identification of harm is not as easy.166
Further the moral evaluation of White-Collar crimes is that they often take place in an environment that is actually producing something good – just think of companies employing a lot of people, and creating value where it previously was absent. This may affect our judgment of the harmfulness of their conduct such as price-fixing.167
162 Green 2006 p. 1 163 Green 2006 pp. 46-47. 164 Harding 2010 p. 52. 165 Harding, 2010 p. 52. 166 Green 2006 p. 35.
What may add to the ambiguous nature of white-collar crimes is that the same behavior may be subject to either criminal law or administrative (civil) law treatment. 168
Further, not making a distinction between the conduct and result causes a ‘blurring effect.’169 White-collar crimes may combine both incomplete and
complete behavior into one offense only.170
At the sentencing stage the political biases and class-consciousness of the judges may affect the severity of sentences imposed. As Stuart Green describes the conservative judge may be harsher in their thought on how street crime should be treated than what their liberal colleagues are, whereas the liberal colleagues would treat the white-collars more severely. The moral ambiguity of white-collar crime may affect the stance taken by the legislature and the prosecutors as well. In the US context this is exemplified in the lysine cartel case where the appeal court raised the prison sentences from two to three years, which was the maximum sentence under the law.171 In
relation to the mentioned cartel Stuart Green cites Kurt Eichenwald, the author of the blockbuster book, ‘the Informant’172, who has ridiculed the
sentences in general for being too lenient by saying that: ‘Again, executives who effectively cheated every grocery store in the country received shorter sentences than if they robbed just one.’173
Despite the apparent ambivalent feelings in relation to white-collar conduct, for example Green has argued that white-collar activities often are so harmful that they merit criminal sanctions.174 This is the view that
this author takes with regard to hard-core cartels.
3.5.1 The Public Perception of the Cartel Offence in the UK
and Australia
While studying the moral content of cartels, it is helpful to survey the public opinion and this is what has been done in the UK and Australia.
It may be argued that it is important to know how the public perceives cartels and that this should be part of the enforcement discussion.175 This is
relevant especially if the discussion does not only touch upon the economic harm that cartels bring about, but also the moral sphere.176 Getting support 168 Green 2006, p. 24.
169 Green, 2006, p. 37. 170 Green 2006, p. 37. 171 Green 2006. pp. 27-28.
172 The book gives an account of the infamous Lysine cartel, See Eichenwald 2012. 173 Eichenwald 2002.
174 Green 2004, p. 519. 175 Beaton-Wells 2012. p. 267. 176 Beaton-Wells 2012 p. 289.
from the public to treat a given conduct as criminal may be viewed important from the perspective of criminal law.177 In Australia178 and in the UK179
the public opinion regarding cartels has been surveyed and the studies are unique in the sense that they are the only ones of their kind touching upon this matter.180 Both studies took place online, the Australian sample
consisting of 1334 respondents from Australia181 and the British sample of
1219 people residing in the UK.182 It seems the study results are in general
in agreement with each other.183 Both studies used factual settings to portray
cartel behavior to get answers from the respondents.184
The UK survey showed inter alia that only 11 % saw that the cartelists should be imprisoned.185
7% saw price-fixing as something similar to theft and 8% compared it to fraud –– only two in every four deemed price-fixing to be dishonest. This is problematic, because if cartel activities are not seen as something equivalent to criminal activities the criminal law based dishonesty requirement (which the Government removed) in the UK could indeed render the cartel offence ineffective. It seems that under such circumstances getting cartelists sentenced to prison will be challenging.186
In Australia two-thirds of the surveyed were of the opinion that cartels should be illegal. Yet most of the public does not see that cartels merit criminal treatment, 44% supported criminal prohibition against price- fixing, the support for imprisonment in case of price-fixing was below 20 %.187 Despite this both in the UK and Australia the public is of the view
that firms and individuals should still be subject to penalties.188 In Australia
there was not a significant support for the leniency policies, even if the cartel would remain undetected absent the leniency program.189
Beaton-Wells and Parker pointed out that in order for the introduction of criminal sanctions against cartelists to be successful people engaged in commercial activity would have to recognize that cartel behavior is subject to criminal penalties that may attract custodial sanctions. In this regard
177 ibid. p. 276.
178 See Beaton-Wells Caron, Haines Fiona, Parker Christine and Platania-Phung Chris, ’Report on a Survey of the Australian Public regarding Anti-Cartel Law and Enforcement’ 2010.
179 See Stephan 2008a. 180 Beaton-Wells 2012, p. 268.
181 Beaton-Wells 2012, p. 268 see footnote 12. 182 Stephan 2008, p. 125. 183 Beaton-Wells 2012 p. 268 184 Beaton-Wells 2012 pp. 269-270 185 Stephan 2008a, p. 144. 186 Stephan 2008a, p. 144. 187 Beaton-Wells 2012 . pp. 270-271 188 ibid. p. 272; Stephan 2008 pp. 132-133.
the Australian Cartel Project showed that 45 per cent of the surveyed were aware of the competition law fines and whereas 23 per cent were informed of the possibility of custodial sanctions in case of cartel conduct.190 The
surveyed for the most part perceived a higher probability of detection and enforcement when there was a shift from civil to criminal sanctions. 191
Regarding the level of awareness of the sanctions and how the probability of detection and action was viewed, the Australian Cartel Project results showed that ‘the strongest predictor of knowledge and perceived likelihood of detection and enforcement was agreement with criminalization.’ The people who thought that price-fixing should not be subject to any action or criminal sanctions were 7 times more likely to suppose that cartel conduct did not contravene any laws.192 For the cartel criminalization context
Beaton-Wells and Parker note that importantly deterrence depends on the person’s ‘normative appraisal of the law and its enforcement’ and therefore the deterrence theory with its rational profit-maximizing individuals is weakened.193
15 per cent of the surveyed said that when civil sanctions were employed they themselves would probably infringe the laws, whereas the figure was 9 per cent when criminal sanctions were available. As Beaton-Wells and Parker point out this means that 1 in 10 would consider entering cartel activity while being aware of exposing themselves to custodial sanctions.194
In Beaton-Wells’ view what is similar between the Australian and British studies is that the public tends to see cartel behavior as something more related to the moral sphere and to the ‘inherent nature of the conduct’ rather than the economic consequences that it produces.195 She lists the following
points that support this view:
-When the cartel conduct was characterized as dishonest rather than drawing on its economic results, treating it as a criminal offence got the most support from the respondents.
-The public naming of the guilty was heavily supported in both countries, and as Beaton-Wells points out, this indicates that public sees that the conduct merits censure from the whole community.
-That the public views the matter through moral lenses may be reflected also in the meager support for leniency, namely letting the whistle-blower go free.
190 Beaton-Wells and Parker 2012, p. 8. 191 Beaton-Wells and Parker 2012, p. 11. 192 Beaton-Wells and Parker 2012, pp. 12-13. 193 Beaton-Wells and Parker 2012, p. 13. 194 Beaton-Wells and Parker 2012, p. 14. 195 Beaton-Wells 2012, p. 275
-Both surveys measured robust support for the view that cartels are equally serious irrespective of results, for example in the absence of a markup in prices.
-that cartel behavior should be treated more severely, when a ringleader has forced other cartel members, found significant support amongst the Australian respondents.196
Even if the cartel was entered in a bid to avoid redundancies or was formed by smaller companies or directed the cartel gains at making ‘environmentally friendly’ products generally was not seen as a mitigating factor.197
Beaton-Wells however said that the study results imply that the project to criminalize cartels is more the concern of the authorities who wish to employ more robust tools than a movement amongst the general public.
198 Green and Kugler argued that the moral acceptability of criminal law
amongst the general public has a direct bearing on the stigmatizing and compliance cultivating traits of the criminal law.199 In order to develop
compliance it is seen that a legal policy should be such that the law is in harmony with the moral perceptions of the public. This is so with or without the employment of criminal law measures. Where there is a gap between the law and the public perception, arguably problems could ensue, such as the incapability of the law to shape the conduct.200 Parker has asserted that if
deterrence claims are supported by morally imbued claims that lack public support, the dedication to compliance of the firms could be impaired.201
As Beaton-Wells points out it is not easy to bring into agreement the values of a firm and the law as was reflected in the promotion of a corporate executive while a criminal cartel charge against him was pending.202 Further,
it has been argued that compliance could suffer when crisis cartels are formed out of altruistic motives, such as the motivation to avoid redundancies.203
The aforementioned could be taken to mean that more emphasis should be put on the perceptions of the people working within firms so as to influence their views regarding commendable behavior and conversely wrongful behavior.204
It may be noted that the study of Green and Kugler ‘found that lay persons, in general are comfortable making fairly fine-grained distinctions
196 ibid. pp. 275-276
197 Beaton-Wells and Parker 2012, pp. 17-18. 198 Beaton-Wells 2012, pp. 277-278.
199 Green and Kugler 2012, p. 33; Stucke 2006, p. 536. 200 Beaton-Wells 2012, pp. 278-279.
201 See also Parker 2006, p. 4.
202 Peel 2008; Beaton-Wells 2012 p. 279. 203 Beaton-Wells 2012 p. 280.
regarding the law of white collar crime.’205 That people are capable of such
an assessment arguably was overlooked in the design of the UK cartel offence that incorporated the dishonesty test.206
Beaton-Wells and Parker noted that besides stigmatizing cartel conduct in an attempt to create deterrence the individuals normative judgments should be brought closer to what the law states in order to boost compliance.207 It would also be good for the authorities to establish
a connection with the business community and seek to comprehend the businesses’ points of views, since the emergence of normative engagement depends on the subjective views of people deeming that they have been heard. 208 While the authorities should be willing to consider the views of
the business community and communicate with it, the authorities do not have to embrace such views. 209 Nielsen and Parker had also acknowledged
in their study that the regulator also needs a stick, since in the absence of one, the regulator’s attempts to shape conduct is futile, but still the regulator, in order to create a credible possibility of enforcement, should wield its power fairly.210
3.6. CONCLUSION
From the perspective of ultima ratio, a central criminal law principle, the moral content of a given conduct, liable to become subject to criminal penalties, should be evident and such that a criminalization is justified, so as to reserve criminal law only to the most egregious cases.
The legitimacy of the criminal law may depend on the public perceptions of the criminalized conduct. The overcriminalization critique draws inter alia on this gap that exists between the written law and the public perceptions, which arguably dilutes the criminal justice system.
This author welcomes the discussion regarding the morality concerning cartel conduct and sees it as a vital part of any cartel criminalization project. Where there is ambiguity in the minds of the public regarding the moral wrongfulness of cartels, competition law advocacy is called for. On the other hand the educative function of the criminal law may alter such views held by the public. In terms of judicial attitudes prejudiced against unsuspended custodial sanctions, lengthier prison sentences may help.
205 Green and Kugler 2012. p. 34. 206 Beaton-Wells 2012. p. 281.
207 Beaton-Wells and Parker 2012, p. 21. 208 Beaton-Wells and Parker 2012, p. 21. 209 Beaton-Wells and Parker 2012, p. 21. 210 Parker and Nielsen 2011, p. 116.
In the context of a cartel criminalization project it may be noted that while traditionally cartels have been viewed as mala prohibita crimes, the argument has been made above that they are not morally neutral – it appears that the delinquency of cartels is connected with the perception that they defy the whole market economy.
The influential theory on white-collar conduct by Green indicates that cartels might violate everyday moral norms against cheating, deceiving and stealing, this argument concerning the viability of the aforementioned everyday moral standards is however not beyond criticism. On the other hand there exists robust economic evidence on the harmfulness of cartels. Thus it seems that from a moral perspective there are grounds to criminalize cartels.