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Deterring the State and the Firm: Two systems of deterrence under EU law?

Bogojevic, Sanja LU orcid and Petit, Nicolas (2016) In Colombia Journal of European Law 23(1). p.55-89
Abstract
This paper sheds light on the existence of a differential deterrence regime in EU law, depending on whether the State or the firm is the addressee of a legal obligation. To that end, we review two areas of EU law – environmental law and competition law. Both disciplines employ fines to deter the State and the firm respectively from violating their specific duties under the Treaty: the ‘duty to transpose’ with regard to State obligation under environmental law, and the ‘duty to compete’ in relation to firms under competition law. We show how the deterrence regime is softer on the State in at least three ways: functionally (purpose ascribed to the penalties), operationally (method followed to set and liquidate the penalty), and procedurally... (More)
This paper sheds light on the existence of a differential deterrence regime in EU law, depending on whether the State or the firm is the addressee of a legal obligation. To that end, we review two areas of EU law – environmental law and competition law. Both disciplines employ fines to deter the State and the firm respectively from violating their specific duties under the Treaty: the ‘duty to transpose’ with regard to State obligation under environmental law, and the ‘duty to compete’ in relation to firms under competition law. We show how the deterrence regime is softer on the State in at least three ways: functionally (purpose ascribed to the penalties), operationally (method followed to set and liquidate the penalty), and procedurally (requiring prior judicial approval as opposed to having immediate applicability). These findings are significant for two reasons: they suggest a State versus firm discrepancy in the EU’s deterrence regime, and serve to initiate a debate on the desirability of such a divide. (Less)
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author
and
publishing date
type
Contribution to journal
publication status
published
subject
keywords
EU law, Competition law, Environmental Law, Miljörätt, Miljörätt, EU-rätt, Konkurrensrätt
in
Colombia Journal of European Law
volume
23
issue
1
pages
55 - 89
ISSN
1076-6715
language
English
LU publication?
no
id
440a366e-61c1-4f88-b23f-fcb012e3bf9c
alternative location
https://heinonline.org/HOL/Page?handle=hein.journals/coljeul23&id=61
date added to LUP
2023-02-26 10:24:49
date last changed
2023-03-02 14:45:07
@article{440a366e-61c1-4f88-b23f-fcb012e3bf9c,
  abstract     = {{This paper sheds light on the existence of a differential deterrence regime in EU law, depending on whether the State or the firm is the addressee of a legal obligation. To that end, we review two areas of EU law – environmental law and competition law. Both disciplines employ fines to deter the State and the firm respectively from violating their specific duties under the Treaty: the ‘duty to transpose’ with regard to State obligation under environmental law, and the ‘duty to compete’ in relation to firms under competition law. We show how the deterrence regime is softer on the State in at least three ways: functionally (purpose ascribed to the penalties), operationally (method followed to set and liquidate the penalty), and procedurally (requiring prior judicial approval as opposed to having immediate applicability). These findings are significant for two reasons: they suggest a State versus firm discrepancy in the EU’s deterrence regime, and serve to initiate a debate on the desirability of such a divide.}},
  author       = {{Bogojevic, Sanja and Petit, Nicolas}},
  issn         = {{1076-6715}},
  keywords     = {{EU law; Competition law; Environmental Law; Miljörätt; Miljörätt; EU-rätt; Konkurrensrätt}},
  language     = {{eng}},
  number       = {{1}},
  pages        = {{55--89}},
  series       = {{Colombia Journal of European Law}},
  title        = {{Deterring the State and the Firm: Two systems of deterrence under EU law?}},
  url          = {{https://heinonline.org/HOL/Page?handle=hein.journals/coljeul23&id=61}},
  volume       = {{23}},
  year         = {{2016}},
}