PROCESO DE DESHIDRATACIÓN OSMOTICA DE FRUTAS

Hazel Genn has indicated that ‘[c]companies which do not have a natural interest in safety require considerable advice, encouragement and coercion.’222

Referring to Genn’s paper Beaton-Wells and Parker pointed out that business executives start weighing the costs and benefits of compliance only once the costs of not complying are publicized which in consequence raises their awareness to the perils of not obeying the rules.223

Various commentators have postulated tentatively that a mixture of measures may be beneficial in achieving deterrence, instilling a culture attentive to the antitrust rules.224 The variety of sanctions, including criminal

penalties, fines, private damage actions and disqualification orders may possibly influence the management of a company to take the steps to change the corporate culture.225

As pointed out by Öberg this conforms to the idea of the tit-for-tat strategy as advocated by Ian Ayres and John Braithwaite. Essentially it means that an array of punishments and persuasion are available.226 Ayres and

Braithwaite argue that as the toughness of the penalties increases so does the level of compliance that the agency is able to achieve and that simultaneously the need to employ tough measures decreases: ‘Regulatory agencies will be able to speak more softly when they are perceived as carrying big sticks.’227

In their view this approach embraces both the rational choice doctrine and sociological studies in combination, forming the basis of the tit-for-tat strategy.228 _{Therefore at the EU level according to this approach penalties}

of varying severity should be available to the Commission, suggesting that individual penalties besides the criminal ones, could include inter alia director disqualification orders and personal fines, but as complements, not as stand-alone sanctions.

4.11 CONCLUSION

In art. 83(2) TFEU there is an explicit legal basis to harmonize criminal rules within the EU Member States, subject to the fulfillment of certain criteria.

222 _{Genn 1993. p. 219; Beaton-Wells and Parker 2012, p. 6, see footnote 33.} 223 _{Beaton-Wells and Parker 2012, p. 6, see footnote 33.}

224 _{See Stucke 2011, p. 288; Harding favours director disqualification orders over} prison sentences, see Harding 2011, p. 375; Stephan 2011a, p. 8; Wils 2005a, pp. 145, 147; See also Fingleton et al., 2007. p. 9ff.

225 _{See Harding 2011 p. 375}

226 _{Ayres and Braithwaite 1992, p. 5; Öberg has recently used the tit-for-tat argument} in the context of antitrust violations, see Öberg 2011, p. 316.

Views have been voiced that a criminal prohibition of cartels should have its basis in art. 83(2) TFEU. On the other hand with regard to the possible cartel criminalization project it has been proposed that the sufficient prior harmonization in the competition law area would not be in place for the Union to proceed to criminalize cartels based on art. 83(2) TFEU. This author agrees with those who argue that it seems that the non-criminal and criminal measure could be adopted almost simultaneously. Regarding the essentiality requirement, it must be concluded, that empirical evidence is extremely hard to acquire and therefore it is unrealistic to expect such evidence. It could be argued that already the existing anti-cartel regime has proved that more robust measures, including the criminal ones, are needed. The Commission has recently made a proposal regarding harmonized criminal rules on market abuse – this initiative will be the first one to show the boundaries of art. 83(2) TFEU and may be of relevance with a view to a possible future harmonization in the area of competition law.

Another question is whether cartels should be criminalized at the level of the EU institutions or at the level of the Member States or both. In terms of the arguments presented above, such as the exchange of information between Member States and leniency, it seems that having harmonized criminal rules would be desirable. However there are practical problems concerning a criminalization at the level of the EU institutions, further the introduction of art. 83(2) TFEU may rule out such an option. Therefore it may be argued that it might be feasible that individual resourceful Member States would proceed with the cartel criminalization project. However, as Furse has pointed out, the collapse of the UK criminal cartel regime seems to prove that an EU-led project could be more viable. For the time being it seems that the EU is reluctant to proceed in this area, and therefore it appears that at least in the near future, it falls on the Member States themselves to adopt criminal rules, if such a level of condemnation is seen as appropriate. As was pointed out, the resources required to properly enforce a possible criminal prohibition of cartels would be considerable and should definitely be a part of the consideration of such a project both at the EU level and at the level of the Member States. Based on the above this author tends to think that criminal anti-cartel enforcement is needed both at the EU level and at the Member State level, and if the former requires Treaty amendments, this may not be excluded as a possibility in the future. For now, it seems however, that the intricacies of possible criminal cartel enforcement are to be solved at the Member State level.

A ‘consistent and coherent’ EU criminal policy with regard to cartels, an egregious antitrust violation, should take into account a number of factors. The policy should provide consistency by criminally prohibiting conduct of similar penal value to support the credibility of the criminal justice system. It may be argued that the relative penal value of cartels warrants a

criminal prohibition. While the EU exercises its criminal law competence, due respect should be given to the principle of ultima ratio, using criminal law only as the last resort thus keeping in check the broad EU criminal law powers. The EU criminal policy should have a clear approach as to the distinction between administrative and criminal sanctions in order to ensure that the appropriate message is conveyed to the public: when the ultimate condemnation of criminal law is needed the director disqualification order does not provide the proper signal as it lacks the stigmatizing label that criminal penalties carry. Arguably director disqualification orders are not sufficiently deterrent, but are still a good complement to criminal sanctions - no conclusive evidence as to the deterrent effect of criminal penalties exists, but anecdotal evidence, various attempts at measuring deterrence and the possible educative function indicate that adding criminal penalties to an anti-cartel enforcement regime could create deterrence. It is argued that the European Commission ultimately needs a mixture of measures, including a big stick, to adequately address the cartel problem in Europe.

5 Punitive Administrative