Practical compliance issues. Practical compliance issues analyse real cases, legal opinions, or relevant issues that we have had to consider when drafting compliance programmes.
Management and employees have a duty to be aware of business behaviour that is considered anti-competitive.
Violations of antitrust law can have significant legal and economic consequences for offenders. Penalties may result in the imposition of fines calculated on a percentage of sales of up to 30% of annual turnover. The amount of the fine will depend on the gravity of the infringement, if applicable the abuse of dominant position, price fixing or market sharing, and its geographic scope. It will also be considered whether the infringement was actually carried out or only attempted.
So, these sanctions can in practice be imposed even on a parent company for the anti-competitive offences of its subsidiaries.
In practice, we are witnessing a constant growth in the financial penalties imposed on cartels by the European Union, which since 1990 has opened almost 1,000 sanctioning proceedings for cartels, imposing total fines of more than 30,000 million euros. Practically 1,000 million per year.
In the case of Spain, the 2009 Annual Report of the National Markets and Competition Commission (CNMC) states that it initiated 52 formal investigations in different sectors. That is a substantial increase compared to previous years. It also carried out 13 inspections at 35 company headquarters and the total amount of sanctions imposed for cartels was 172.6 million euros.
Despite the harshness of the sanctioning regime, the fact is that anti-competitive practices continue to expand steadily. That’s demonstrated by the continuous opening of new investigation files and the imposition of sanctions by all regulatory bodies.
This expansion stems from the profitability that these practices can generate for the company in terms of profits or reduced costs, and from the simultaneous difficulty that the authorities have in predicting the probability of detecting this type of agreement, which will be developed in secret.
In that circumstance raises the dilemma of how management and employees are going to receive pressure or proposals to reach this type of agreement, sometimes camouflaged in interesting offers, having the duty to reject them. In order to do so, they should be aware of business behaviour that is considered anti-competitive.
However, the complexity of the subject matter will generate serious difficulties in identifying and knowing what conduct is prohibited or considered unlawful by the regulations.
The problem stems from the fact that in the current regulatory framework of competition law, the law does not define the prohibited conducts in a specific way, as occurs in the field of criminal law, but by means of much more general clauses.
NATURE OF LIABILITY UNDER COMPETITION LAW
The practice of the European Commission, the Community Courts and the CNMC in Spain is that the company is always liable for its anti-competitive action. The existence of a compliance programme does not exempt or mitigate liability.
In practice this implies a system of strict liability, which could be contrary to the Principle of Liability provided in art. 23.2 of Council Regulation 1/2.003 and the Charter of Fundamental Rights of the European Union or the European Convention on Human Rights.
Usefulness of the programme for activating leniency policy of the European Commission. While not exempting liability, the programme can be very useful. In the event that employees engage in prohibited conduct, the Compliance Programme will detect such conduct. The company will be able to quickly transmit to the authorities relevant information concerning participation in a cartel. This will enable the Company to benefit from a leniency policy and reduce your liabilities.
In Spanish law, collusive agreements may have criminal relevance when they occur within the framework of public tenders and bids (bid rigging). They are considered to constitute one of the most serious anti-competitive conducts. Article 262 of the Penal Code provides for prison sentences of up to three years and a ban on contracting with public administrations for a period of up to five years.
The Compliance Model requires an adequate knowledge of the risks, which means,
– An in-depth study of the specific activity of the Company.
– Proper knowledge of the sector in which it operates.
– Knowledge of the specific size of the company and its capacity to influence the market.
– Knowing the commercial strategy and the policy of alliances or commercial partners.
– Identify the people who are in contact with the sources of danger.
– Collect and analyse the intra-group regulations adopted.
– Investigate the background and possible administrative sanctions of the company or its competitors.
– Determine who needs to be trained and in which subjects.
– A constant review of all the characteristics to detect new risks.
COMPETITION COMPLIANCE PROGRAMMES
The Competition Compliance Programme should be integrated into the overall compliance system. This programme will reinforce legal certainty within the company, adequately and in detail. The competition policy will establish the risk practices indicating both the prohibited conducts and the basic rules of behaviour that must be respected in a preventive manner. Its task is to specify in the company which behaviour is to be considered prohibited and which is not, and to train its employees and agents accordingly.
In order to achieve the desired legal certainty, the programme will have to be constructed in accordance with EU standards, which can be summarised as follows:
– We will start from a firm decision to consolidate a culture of compliance. The competition policy will provide insight into the intended purpose of competition advocacy. It will clarify the sanctions and risks the company faces and the prohibited conduct.
– It must be defined a clear strategy adapted to the characteristics of the market and the activity exercised by the company.
– Adequate risk identification, through a general market assessment and a company-specific assessment.
– There must be official recognition of the policy aimed at complying with antitrust regulations by both the company’s managers and employees.
– Set an example on a day-to-day basis from management, Tone from the Top.
– Draft rules clearly, in a comprehensible manner and tailored to the particular needs of the Company, establishing rules of behaviour for complex situations.
– Disseminate information on and awareness of anti-competitive rules to employees through planned training tailored to the specific activities and needs of the company.
– Encourage discussion and participation of employees and stakeholders.
– Establish due diligence systems for the correct knowledge and selection of agents or collaborators.
– Establish internal whistleblowing channels.
– Check that standards are met through proper organisation. Establish focused controls or audits on «risky employees». Analyse inter alia travel expenses. Establish authorisation and reporting systems for meetings with competitors. Attention to business associations. Control information exchanges. Maintain a confidentiality policy. Analysing recruitment. Conduct due diligence prior to possible joint ventures. Identify red flags. Study tenders and bids. Analyse subcontracting. Check price evolutions, similarities, or significant differences with those of other companies.
– Designate a compliance officer with the competencies and resources to develop the programme. The compliance officer have to verify that the controls are effective and are passed according to the established schedule.
The compliance officer must be integrated organically in the company. It can be a collegiate body, an employee, or an external person, provided, as mentioned above, that he/she has the capacity and resources to carry out his/her functions.
The compliance officer should resolve doubts and coordinate with the heads of other companies in the group.
– Establish rules of conduct for competition inspections.
– Establish a system of continuous updates and continuous improvement.
A Compliance Model will allow better compliance with competition law regulations, avoid sanctions and at the same time can be used in practice as a competitive reputational advantage over other companies that have not implemented such a programme.