Designing a Compliance Policy, the French Approach

Compliance is the outcome of interactions between firms and competition authorities. For a competition authority to design compliance policy instruments requires understanding the origins of harmful conduct so that firms’ incentives could be changed. This includes adjusting instruments in terms of information gathering, rules and procedures and sanctions. It also needs addressing agency issues and adapting to the economic context. These points are illustrated with examples derived from the French Autorité practice in the field.

By Marianne Faessel & Henri Piffaut^[1]

What is the purpose of competition policy? An oft misconception is to confuse the end with the means. To find an infringement of competition rules and impose fines is not an end in itself, although it has a clear impact. In Europe at least, fines do not bring reparation. They are set in such a way that any company about to adopt a possibly illegal behavior would internalize the risk of being fined and rationally opt for a non-infringing behavior (i.e. deterrence). The potential decision and fine are the means to adjust the incentives of companies when they decide on their behavior on the market. To put it differently they aim at ensuring compliance with competition law. The end is a functioning of the market that maximizes consumer welfare.^[2]

Most agencies have developed compliance policies. By so doing they use various tools to create incentives for firms to comply with the rules: when decid