Author(s) Flávia Noversa Loureiro
Advisor(s) Jorge de Figueiredo Dias and Mário João Ferreira Monte
Year 2015

Synopsis This work aims to equate the need to protect certain serious offenses against the freedom of competition, in particular cartel, though the use of the criminal law. It places itself, therefore, at the intersection of distinct realities, sometimes difficult to reconcile: on one hand, does not dispense an analysis, albeit perfunctory, of the essential tenets of competition as an economical science; on the other hand, seeks further and deeper its reason, understanding it as a fundamental component of true democracy and asserting its sociopolitical role in the current State of Law. Under these assumptions, we aim to define the legal contours of this reality and the respective guardianship, seeking to situate historically and geographically the dawn of the right of freedom of competition. We started this trip in the United States of America, first homeland of competition law, heading then to Europe, in particular Germany and the EU project of the old continent. We end, inevitably, with an analysis of the development of competition law in Portugal, its emergence and main characteristics, constitutional requirements and contemporary settings. Thus, after setting the legal and institutional framework in which we move, nationally and internationally, and having found a fundamental opposition between the North American model for protection of competition – based on criminal oversight – and the European ways – historically grounded in administrative protection –, we seek to ascertain whether our legal treatment of the problem is presented as satisfactory or whether, by contrast, shows flaws in need of clogging. Noticing that an increasing number of voices have been urging a strengthening of reaction measures against the most serious anti-competitive practices, the «hard core» cartel, we then analyze the possibility of criminalize such behavior amongst us. To do so, we start by inquiring about the socio-criminal assumptions that may support this option, concluding that economic crimes share a set of features that can be found in those behaviors, particularly in relation to the special role played by corporation in this framework and the eventual need to make liable the legal person. Considering, however, that such criminal interference is legitimated, we must ask ourselves about the legal asset that underlies it, the criminal dignity and need for guardianship, in the intrinsic relationships that such qualities establish with the constitutional axiological order. Given the current regulatory paradigm crisis, we enter the criminal law doors and seek to characterize the crime of cartel in its many aspects, detailing their typical elements, underline the core issues we must unravel if we aim to effect its juridical and penal protection. We propose, thus, a configuration for the incriminating type of cartel, as we believe can be introduced into our legislation, leaving clues and questions about the way forward.

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