Legal certainty and competition law: Can they be reconciled?

[摘要] ENGLISH ABSTRACT: Legal certainty and the rule of law are important principles in many jurisdictions aroundthe world. An important part of these principles is that laws should be sufficiently clearand predictable, so that individuals can plan their conduct in the knowledge of the legalconsequences that will flow from it. In particular, individuals should not be found liable forinfringing laws, or be penalised for doing so, where those laws did not provide sufficientcertainty in advance that the conduct would be illegal.Competition laws have frequently been criticised for lacking certainty and predictability.So far most of the criticism in this respect has been levelled at US antitrust law, criticismsthat will be discussed briefly in this paper. This dissertation will demonstrate that similarcriticisms can be made of the competition laws of many other jurisdictions, using fivecompetition regimes as a representative sample, namely the EU, Australia, Canada,South Africa and Hong Kong (the 'subject jurisdictions).What is 'sufficient legal certainty? After all, many laws are couched in terms that are, toa greater or lesser extent, vague. This dissertation will argue that a high degree of legalclarity is required of competition laws because of their largely criminal or quasi-criminalnature, and uses the criteria laid down by the European Court of Human Rights as anappropriate benchmark in this respect. We show that, to varying degrees, the competitionlaws of the subject jurisdictions do not meet those criteria, and therefore they are notsufficiently certain.We also demonstrate that this lack of legal clarity leads to many adverse consequencesin terms of waste of society's resources, unfairness, harm to the credibility of the legalsystem, and others.We then look at possible ways of solving the problem. We show that the existing methodsthat have been used to bring greater clarity into competition laws, or mitigate the adverseeffects of lack of clarity, have not been fully effective in achieving this. Finally we proposea new way forward which mitigates substantially the adverse effects of legal uncertaintyin competition laws.

[发布机构] Stellenbosch University