This chapter introduces the remedies for IP infringement. It discusses whether the remedies available, particularly the final injunction, mean that IP rights are a form of property (the conceptual question).

This chapter explores the role of the European court system in establishing the foundations of European criminal law and influencing its subsequent development. It opens with an historical overview of the emergence of the various elements within the judicial system focusing on the Court of Justice of the EU (CJEU) and the European Court of Human Rights. Particular emphasis is placed in the discussion on the contribution of the CJEU to the field of EU criminal law as it evolved during the Union’s formative years. Through its case law, the Court acted at various times as ‘the motor of European integration’ and the arbitrator of disputes over EU competence and the primacy of EU law. The chapter then moves to the contemporary setting of judicial engagement with the principle of mutual recognition by exploring the implications of certain judgments on the European Arrest Warrant. Consideration is given in this discussion to the increasing and progressive emphasis within the jurisprudence on the essential role of the European court system in ensuring due process and safeguarding fundamental rights.

This chapter investigates the 2019 amendment of the Japanese leniency programme. The authors’ approach starts by observing that the old leniency programme may have substantially contributed neither to detecting nor to deterring cartels. The question, therefore, is whether the new leniency programme, whereby the amount of reduction of the leniency programme is drastically lowered for subsequent applicants but which can be compensated by entering a consultation process with the JFTC regarding the information to be submitted, is able to address the limitations of the old leniency programme. The chapter concludes that this may not be the case, since the changes to the leniency programme only address the potential of subsequent leniency applications. Nothing is done to attract better leniency applications from the start. To increase deterrence, the authors therefore investigate whether there is still some possibility of tweaking the sanctions in order to compensate for what the leniency programme cannot yet achieve.

Breaches of competition law may incur severe sanctions in Austria. Besides heavy administrative fines and nullity of contracts contravening competition law, antitrust infringers must expect private damage action claims from customers or suppliers harmed by antitrust violation. However, only very few final decisions have been rendered in Austria’s private antitrust litigation so far. Under Austrian criminal law, cartel collusion in tendering procedures may qualify as fraud or bid-rigging. Criminal convictions may in turn lead to the withdrawal of trade licences and pose a risk for the company of being 'blacklisted' – at least temporarily – in public procurement procedures. Under exceptional circumstances, dissolution of the company may be ordered if a director has committed an offence in the course of the company’s business activities; the latter possibility only applies to limited liability companies. Under Austrian company law, a director is liable to reimburse all damages caused by not applying the standard care diligence of a prudent business manager, including the compensation of damages incurred through infringements of competition law. This liability exists towards both the company and business partners.

The chapter analyses the intersection of competition law enforcement and criminal justice. It sets out the primary theoretical justification for criminal cartel sanctions: (economic) deterrence. Supporters of antitrust criminalisation usually argue that the optimally deterrent cartel fine is too large to be imposed and that a global trend towards criminalisation of cartel activity can be detected at present. What was once primarily a US phenomenon has become international, with countries as diverse as Israel, Brazil and Australia pursuing a policy of cartel criminalisation. This chapter evaluates some of the inherent practical problems with criminal cartel sanctions. It provides insights into how best to ensure that cartel criminalisation improves the effectiveness of a criminalised regime’s competition policy. The chapter comprises two substantive sections. The first outlines the deterrence-based theoretical justification for criminal cartel sanctions. The second critically analyses two important inherent problems that arise when criminal sanctions are used to deter cartel activity: the difficulty of securing efficient competition law enforcement when criminal cartel sanctions are employed; and the need to connect the criminalised cartel activity to morally wrongful behaviour.

In legal procedures, sanction is understood as a means to put a law into effect, by which the legal subject is compelled to comply with the law by providing incentives for compliance or penalties for infringement. To be effective, sanction needs to have a deterrent effect on the wrongdoer. Competition law sanction varies in different jurisdictions and may include rules of an administrative, private, and criminal law nature. In Indonesia, the competition authority can impose administrative sanctions. However, the law also provides for criminal sanction for the infringement, for which it requires a court decision. The law itself does not mention private sanctions. In practice, it is debatable whether it would be possible to claim damages from a competition law infringer via court. The study is divided into two parts. First, it focuses on sanctioning in competition law in Indonesia: while sanctions usually require a deterrent effect, two issues need further clarification. Secondly, it addresses the challenges needing to be overcome to establish an ASEAN competition law and ASEAN competition law enforcement body, and the attempts to harmonize competition laws of member countries.

As in other areas of social engineering, Sweden is considered as world-leading in creating systems that address social inequality. One of the cases in point is the Swedish day-fine system which has been considered as pioneering by systematically considering both the wealth of the offender and the seriousness of the offence when imposing the penalty. This chapter analyses in detail the Swedish day-fine system. The case study of Sweden sheds light on the pros and cons of day-fines by recalling the discussion in Sweden prior to introducing the system and the recent academic debates on extending the use of day-fines. The chapter also offers an account of the comprehensive prosecutorial guidelines as well as an analysis of the relevant case law, particularly in relation to adjustment of day-fines. The chapter argues that the Swedish day-fine system overall must be considered as a largely successful project which holds high esteem among courts and practitioners. The common view is that it is a merit of the system that it forces the courts to consider the economic circumstances of the accused and to articulate openly for the way in which such consideration has been done.

Day fines were implemented into the Czech Republic criminal system in 2010. They shall reflect the gravity of the crime and personal and financial circumstances of the offender. For natural persons, the daily fine shall be based on an average daily income and for legal persons on their overall financial situation. Day fines are, together with the sanction of prohibition of an activity, one of the two most popular sanctions for legal persons and they are used for various crimes. On the contrary, natural persons are sanctioned with day fines in less than five per cent of cases and the fines are used mainly as a sanction for the crime of hazard due to intoxication (including some events of drunken driving), which represents more than half of the occasions when day fines were imposed. The courts’ practice is, however, somewhat detached from the theoretical underpinnings of the concept of day fines as it appears that judges in reality first set the overall amount of the fine they want to impose and then (without any clear system) divide it into the daily fine unit and the number of days. In most cases the total amount of the fine does not seem proportionate to the offender’s income.

In 2007, a new Swiss Criminal Code became legally effective in which short prison sentences were to a large extent replaced by income-based day-fines. In addition, flat fines (fixed sums ranging from 1 to 10,000 Swiss francs) became more widely available as additional sanctions. Both fines and day-fines are to be converted into custody if they remain unpaid. Several thousand defendants are affected by such a conversion every year, but no systematic information has been collected on these cases. In order to fill this gap, the Department of Justice of the Canton of Zurich commissioned an evaluation on how often, under what circumstances and against what type of defendants monetary penalties are converted into custody. To this end, 447 case files were analyzed and a sample of 106 defendants serving a monetary sanction in prison were interviewed. Staff members and officials in charge of collecting monetary penalties were also interviewed. The results show that the most defendants serving monetary penalties in prison are confronted with multiple problems of integration. A second group were sentenced to substantial amounts of flat fines or day-fines that they or their networks were unable to pay.