At the end of November 2011, the European Commission (the Commission) published a guide on compliance matters setting out a number of measures enabling undertakings to ensure their actions comply with competition law. While the Commission, in so doing, clearly intended to increase the responsibility of undertakings for their own compliance, it is to be regretted that the implementation of such programmes does not in itself, in the event of potential proceedings, generate a financial benefit, particularly given the costs which it represents for undertakings.
The Commission continued its pedagogic efforts by publishing a guide on issues (the Guide) entitled «Compliance matters: what companies can do better to respect EU competition rules».
On the whole, this guide mirrors the Commission’s desire to impose on undertakings the responsibility for their compliance with competition rules. It both reminds the reader of the principal competition rules applicable and the risks incurred in case of non-compliance with such rules, and encourages undertakings to ensure their compliance with competition law.
It is to be regretted, in this respect, that the Commission’s position, confirmed in this guide, is that the implementation of a compliance programme will not be taken into consideration as a mitigating factor and, as a consequence, will not enable undertakings to benefit from a reduction of fines in the event of proceedings, even if such compliance programme fully follows the general provisions set out in the Guide.
This is probably the reason why, in the end, the Guide only gives few guidelines to undertakings: since no programme really enables the undertaking to benefit from a reduction of fine, it would not have been really consistent to propose a model programme or precise guidelines. In reality, according to the Commission, it is up to each undertaking to adopt a compliance programme fitting its own needs, given its size, activity or competitive environment. Moreover, the Commission emphasises that it is not its role to advise an undertaking on its compliance programme or to approve the content of such a programme.
In spite of this minimalist approach, there is a genuine interest for undertakings to implement a compliance programme, especially since infringements of competition law are more and more complex (concerted practices, information exchange …) which makes it difficult for operating staff to know exactly what limitations they must comply with. Thus, in addition to training sessions for employees on competition risks, the implementation of high-performance compliance programmes will facilitate the prevention and the detection of infringements to competition law, thereby making it possible to avoid, in advance of any actual proceedings, damage to the reputation of the enterprise and the risk of fines, particularly through the leniency programme. The increased visibility of practices implemented by the undertaking will also make it easier to make strategic decisions concerning alternative procedures (commitments, settlements).
Moreover, even though the Commission refuses to reward compliance programs, this is not the case of certain national competition authorities. The French competition authority indicated in its recent draft guidelines on compliance programmes published in October 2011 that the commitment to implement or improve a compliance programme, in the course of a settlement procedure, might allow for a reduction of fine up to 10 per cent of the fine incurred, although subject to particularly strict conditions. In the same way, the Office of Fair Trading admits that a compliance programme may, in certain cases, be taken into account as a mitigating factor and, as the case may be, lead to a reduction of up to 10 per cent of the fine imposed.