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Nathalie Jalabert-Doury, David Harrison, Jens Peter Schmidt, Jun 30, 2015
It is, by now, established practice for companies throughout Europe to have in place a range of compliance programs designed to ensure that, so far as is possible, the company and its employees conduct their activities lawfully. In 2011, the U.K., French, and EU competition authorities all published guidance on how businesses should approach competition law compliance. Many ideas on what an effective compliance regime should entail were common to all three texts, but there was a marked difference in the extent to which—if any—each regulator might be prepared to take these efforts into consideration in enforcement decisions against offenders.
The European Commission’s stance on the issue was clear: Rigorous competition law compliance policies should form part of the normal order, and accordingly it would afford offenders no reward whatsoever for merely having such measures in place. By contrast, the U.K. and French competition authorities adopted a more flexible approach, recognizing that, in some instances, genuine attempts at effective compliance should be rewarded by way of reduced penalties.
This article discusses how various EU Member States have attempted to embed compliance principles within their corporate culture by treating less severely those who have made or commit to make an observable effort to comply with applicable competition laws. This approach remains in contrast to the current position of the European Commission, which, reflecting its belief that such measures should be adopted as a matter of course, has so far been unwilling to grant credit to companies that do so.
How have things evolved since 2011? What is the position three years after the initiatives referred to above, and have companies in the meantime been increasingly incentivized to enter into such programs?
We outline below the latest initiatives adopted in this context by several of the growing number of Member States that recognize the value of compliance programs in their fining policy; by contrast, the European Commission has so far remained largely silent in response to the calls by business organizations for increased recognition of these programs.
