Is Individual Imprisonment Necessary in Global Cartel Enforcement? - Comparative Study between the EU and the US -

The United States and the European Union approach differently in using individual imprisonment to fight global cartels. The US has, in its federal law, a provision to send the involved individuals to prison with a maximum possible sentence of ten years. However, the EU does not have an individual punishment provision at the Commission level. Even in the EU Member States where there are individual sanctions against antitrust violations, actual criminal enforcement against individuals has been rare. There are important issues to discuss when countries consider adopting individual imprisonment provision for antitrust violations. The first issue is whether the individual imprisonment works as an effective deterrent. Some scholars and practitioners, especially the US DOJ officials, argue that corporate fine alone cannot work as an effective deterrent, but should be combined with individual imprisonment. However, still some including many EC officials argue that corporate fine is an enough deterrent of cartel activities. The second issue is whether the criminal proceeding against foreign individuals follow appropriate due process. Considering the US cases where many foreign executives pled guilty, there is a doubt whether due process was provided to those foreign executives. Many of them decided to plead guilty giving up their right to a trial not based on legal reasons but based on business reasons such as not being able to travel outside of their home countries for their sales and marketing work. The third issue is how to handle a multiple jeopardy problem when multiple national authorities go after the same individual for a global cartel that brings effect to multiple countries. Although there is an argument to strengthen individual penalty provisions in one side, especially by the US, we should be very cautious in moving such a direction due to possibility of lack of due process and a multiple jeopardy problem.