Criminal Law Principles and the Enforcement of EU and National Competition Law

Name: Criminal Law Principles and the Enforcement of EU and National Competition Law | A Silent Takeover?
Brand: Kluwer Law International
Price: 155.99 EUR
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A Silent Takeover?

Marc Veenbrink(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 20. November 2019

520 Seiten

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Inhalt

Intro
Half-Title Page
Title Page
Copyright Page
Table of Contents
Foreword
Chapter 1 Setting the Scene
§1.01 COMPETITION LAW ENFORCEMENT: FINDING THE APPROPRIATE LEVEL OF LEGAL SAFEGUARDS
§1.02 CRIMINAL LAW SAFEGUARDS AS A SOURCE OF INSPIRATION FOR COMPETITION LAW ENFORCEMENT?
[A] Convergence Between Administrative Law and Criminal Law: The Netherlands and UK
[B] Goals of Criminal Law and Competition Law
[1] Substantive Rules
[2] Procedural Rules
[3] Sanctions
[C] Nature of the Accused
[D] Criminal Law: A Rich Source of Inspiration for Legal Safeguards
[E] Criminal Law as a Source of Inspiration?
Chapter 2 ECHR and EU Criminal Law
§2.01 INTRODUCTION
§2.02 FREEDOM FROM SELF-INCRIMINATION
[A] General Aspects of the Principle in Criminal Law
[1] The ECHR
[2] The EU
[B] Improper Compulsion
[1] The ECHR
[a] Degree of Compulsion
[b] Safeguards in the Procedure
[c] Use to Which Materials Are Put
[d] General Interest
[2] The EU
[C] Consequences of a Possible Violation
[1] The ECHR
[2] The EU
[D] A Comparison of the Freedom from Self-Incrimination under the ECHR and the EU Legal System
§2.03 Non Bis In Idem
[A] General Aspects in Criminal Law
[1] The ECHR
[a] Duplication of Proceedings (bis) and Finality of Proceedings
[2] The EU
[a] Article 54 CISA
[b] Article 50 Charter
[c] Limitation Ground in Article 52(1) Charter
[B] The Concept of Idem
[1] The ECHR
[2] The EU
[a] Article 54 CISA
[b] Article 50 Charter
[C] A Comparison of the Non Bis In Idem Principle in the ECHR and the EU
§2.04 BURDEN AND STANDARD OF PROOF
[A] Burden of Proof
[1] The ECHR
[a] The Burden of Proof When the Authorities Have Discharged Their Burden of Proof
[b] The Burden of Proof for Defences
[2] The EU
[B] Standard of Proof
[1] The ECHR
[2] The EU
[C] A Comparison of the Burden and Standard of Proof in the ECHR and the EU
§2.05 LEGALITY AND LEGAL CERTAINTY
[A] General Aspects
[1] The ECHR
[2] The EU
[B] Sufficiently Accessible and Precise Law
[1] The ECHR
[2] The EU
[C] Retroactive Application of Criminal Law and Lex Mitior
[1] The ECHR
[2] The EU
[D] A Comparison of the Principle of Legality and Legal Certainty in the ECHR and the EU
§2.06 PROPORTIONALITY OF SANCTIONS
[A] Proportionality in General
[1] The ECHR
[2] The EU
[B] Criminal Law Sanctions and Proportionality
[1] The ECHR
[2] The EU
[C] A Comparison of the Proportionality Principle in the ECHR and the EU
Chapter 3 Dutch Criminal Law
§3.01 INTRODUCTION
§3.02 FREEDOM FROM SELF-INCRIMINATION
[A] General Aspects of the Principle in Criminal Law
[B] Testimonial Evidence
[C] Use of Evidence
[D] The Duty of Confidentiality
[E] Résumé
§3.03 Non Bis In Idem
[A] General Aspects in Criminal Law
[B] Conditions
[1] The Same Person
[2] The Same Facts
[C] Résumé
§3.04 BURDEN AND STANDARD OF PROOF
[A] Characteristics of the Dutch Criminal Law System
[B] Burden of Proof
[1] Constituent Elements
[2] Meritorious Defences
[C] Standard of Proof
[1] Constituent Elements of the Offence
[2] Meritorious Defences
[D] Résumé
§3.05 LEGALITY AND LEGAL CERTAINTY
[A] Sufficiently Accessible and Precise Offences and Penalties
[B] Retrospective Application of the Criminal Law and Lex Mitior
[C] Résumé
§3.06 PROPORTIONALITY OF SANCTIONS
[A] Proportionality of Sanctions in General
[B] Fines and Proportionality
[C] Résumé
Chapter 4 English Criminal Law
§4.01 INTRODUCTION
§4.02 FREEDOM FROM SELF-INCRIMINATION
[A] General Aspects of the Freedom from Self-Incrimination
[B] The Right to Not to Answer Questions
[C] The Right to Not to Provide Materials
[D] The Duty of Confidentiality
[E] Consequences of a Possible Violation
[F] Résumé
§4.03 Non Bis In Idem
[A] General Aspects in Criminal Law
[B] Conditions
[C] Résumé
§4.04 BURDEN AND STANDARD OF PROOF
[A] Burden of Proof
[B] Standard of Proof
[C] Résumé
§4.05 LEGALITY AND LEGAL CERTAINTY
[A] Sufficiently Accessible and Precise Offences
[B] Retrospective Application of the Criminal Law and Lex Mitior
[C] Résumé
§4.06 PROPORTIONALITY OF SANCTIONS
[A] Proportionality in Legislation
[B] Sentencing Guidelines
[C] Résumé
Chapter 5 EU Competition Law
§5.01 INTRODUCTION
§5.02 ENFORCEMENT OF EU COMPETITION LAW
[A] The Old (Pre-2004) Enforcement Regime
[B] The New (Post-2004) Enforcement Regime
§5.03 FREEDOM FROM SELF-INCRIMINATION
[A] Introduction
[B] Coercion
[C] Actual Interference
[D] Access to a Lawyer and the Duty of Confidentiality (Legal Professional Privilege)
[E] Consequences of an Infringement of the Freedom from Self-Incrimination
[F] Résumé
§5.04 Non Bis In Idem
[A] Introduction
[B] Prohibition of Double Prosecutions and/or Double Sanctions
[C] Accounting Principle and the Prohibition of Double Sanctions
[D] Final Decision
[E] Conditions
[1] Unity of Offender
[2] Unity of the Legal Interest Protected
[3] Identity of the Facts
[F] Résumé
§5.05 BURDEN AND STANDARD OF PROOF
[A] Introduction
[B] Burden of Proof
[C] Standard of Proof
[D] Résumé
§5.06 LEGALITY AND LEGAL CERTAINTY
[A] Introduction
[B] Legality and Legal Certainty Principle: Content
[C] Legality and Legal Certainty Principle: Criminal Law Light or Administrative Law Plus?
[D] Legality and Legal Certainty Principle: Application in Case Law
[E] Legality and Legal Certainty and Fines: Legal Basis
[F] Legality and Legal Certainty and Fines: Fining Guidelines
[G] Legality and Legal Certainty and Other Cases
[H] Résumé
§5.07 PROPORTIONALITY OF SANCTIONS
[A] Introduction
[B] 2006 Fining Guidelines
[C] Proportionality of Sanctions in General
[D] Factors Which Can Be Taken into Account
[E] Factors Taken into Account: Further Elaborated upon by the Union Courts
[F] Factors Which Do Not Have to Be Taken into Account
[G] Résumé
§5.08 CONCLUDING REMARKS
Chapter 6 Dutch Competition Law
§6.01 INTRODUCTION
§6.02 ENFORCEMENT OF DUTCH COMPETITION LAW
[A] The Old (Pre-2014) Enforcement Regime
[B] The New (Post-2014) Enforcement Regime
§6.03 FREEDOM FROM SELF-INCRIMINATION
[A] Introduction
[B] Coercion
[C] Interference
[D] Duty of Confidentiality (Legal Professional Privilege)
[E] Consequences of an Infringement of the Freedom from Self-Incrimination
[F] Résumé
§6.04 Non Bis In Idem
[A] Introduction
[B] Prohibition of Double Prosecutions and/or Double Sanctions
[C] Accounting Principle and the Prohibition of Double Sanctions
[D] Final Decision
[E] Conditions
[1] Unity of Offender
[2] Unity of the Legal Interest
[3] Identity of the Facts
[F] Résumé
§6.05 BURDEN AND STANDARD OF PROOF
[A] Introduction
[B] Burden of Proof
[C] Standard of Proof
[D] Résumé
§6.06 LEGALITY AND LEGAL CERTAINTY
[A] Introduction
[B] Legality Principle: The Content
[C] Legality and Fines
[D] Legality and Other Cases
[E] Résumé
§6.07 PROPORTIONALITY OF SANCTIONS
[A] Introduction
[B] Fining Guidelines
[C] Proportionality of Sanctions in General
[D] Factors Taken into Account
[E] Factors Taken into Account: Further Elaborated upon by the Dutch Judiciary
[F] Factors Which Do Not Have to Be Taken into Account
[G] Résumé
§6.08 CONCLUDING REMARKS
Chapter 7 UK Competition Law
§7.01 INTRODUCTION
§7.02 ENFORCEMENT OF UK COMPETITION LAW
[A] The Pre-2014 Enforcement Regime
[B] Changes to the Enforcement Regime per 1 April 2014
§7.03 FREEDOM FROM SELF-INCRIMINATION, Non Bis In Idem and Principles of Legality and Legal Certainty
[A] Introduction
[B] Freedom from Self-Incrimination
[C] Non Bis In Idem
[D] Legality and Legal Certainty
[E] Résumé
§7.04 BURDEN AND STANDARD OF PROOF
[A] Introduction
[B] Burden of Proof
[C] Standard of Proof
[D] Résumé
§7.05 PROPORTIONALITY OF SANCTIONS
[A] Introduction
[B] Fining Guidance
[C] References to Criminal Law
[D] Factors Taken into Account
[E] Résumé
§7.06 CONCLUDING REMARKS
Chapter 8 The (Potential) Impact of Criminal Law Principles on the Administrative Law Enforcement of Competition Law
§8.01 INTRODUCTION
§8.02 INFLUENCE
[A] Legality and Legal Certainty Principle
[1] Legality and Legal Certainty and Fines
[2] Legality and Legal Certainty and Other Cases
[B] Concluding Remarks
§8.03 SIMILARITIES
[A] Freedom from Self-Incrimination
[1] Coercion
[2] Actual Interference
[3] Actual Interference: Documents - ECHR
[4] Actual Interference: Documents - English Criminal Law
[5] Actual Interference: Answers - ECtHR
[6] Actual Interference: Answers - English Criminal Law
[B] Burden and Standard of Proof
[1] Burden of Proof
[2] Standard of Proof: Competition Authority
[3] Standard of Proof: Undertaking
[C] Proportionality of Sanctions
[1] Judicial Review
[2] Judicial Review and the Discretion of Competition Law Authorities
[3] Deterrence
[D] Concluding Remarks
§8.04 DIFFERENCES
[A] Freedom from Self-Incrimination
[1] Actual Interference: Documents
[2] Actual Interference: Answers
[B] Standard of Proof
[1] The Netherlands: Constituent Elements
[2] The Netherlands: Meritorious Defences
[3] The UK: Proving an Infringement and Substantiating Defences
[C] Proportionality of Sanctions
[1] The Netherlands: Proportionality of Sanctions - Judicial Review
[2] The Netherlands: Deterrence
[3] The UK: Judicial Review and Factors Taken into Account
[D] Non Bis In Idem
[1] General Aspects
[2] Unity of the Offender
[3] Unity of the Legal Interest
[4] Identity of the Facts
[E] Concluding Remarks
Chapter 9 Conclusion and Recommendations
§9.01 INTRODUCTION
§9.02 IS THERE AN IMPACT OF CRIMINAL LAW PRINCIPLES ON COMPETITION LAW PROCEEDINGS?
§9.03 COMPETITION LAW SAFEGUARDS: THE STRUGGLE FOR JUDGES
§9.04 RECOMMENDATIONS FOR THE LEGISLATOR
[A] The Lack of Discussion on Safeguards in Competition Law Proceedings
[B] Efficiency Considerations
[C] Creating a Clear Vision
§9.05 RECOMMENDATIONS FOR THE JUDICIARY
[A] Case Law of the CJEU: The Minimum Level of Protection for Undertakings
[1] Freedom from Self-Incrimination
[2] Burden and Standard of Proof
[3] Principles of Legality and Legal Certainty
[4] Proportionality of Sanctions
[5] The Non Bis In Idem Principle: Current Application
[6] The Non Bis In Idem Principle: Suggested Changes
[B] Recommendations for the Dutch Judiciary: Some Specific Observations
[1] The Approach Towards the Standard of Proof in Dutch Competition Law: An Anomaly
[2] Applying the EU Non Bis In Idem Principle
[3] The Proportionality of Sanctions
[4] Résumé
[C] Recommendations for the UK Judiciary: Some Specific Observations
[1] Brexit and Section 60 of the Competition Act 1998
[2] Proportionality of Sanctions
[3] Résumé
§9.06 FINAL OBSERVATIONS
Appendix I: Case Law on the Proportionality of Competition Law Sanctions in the EU
Appendix II: Case Law on the Proportionality of Competition Law Sanctions in the Netherlands
Bibliography
Table of Cases
Table of Decisions
Table of Treaties, Legislation and Guidelines
Other Sources
Index
INTERNATIONAL COMPETITION LAW SERIES

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