Other jurisdictions that offer discounts
The new U.S. policy brings the DOJ into line with a significant number of competition authorities - including Australia, Brazil, Canada, Israel, Italy, Malaysia, Singapore, South Africa, Spain, Switzerland and the UK. These authorities will, in principle, consider a compliance programme as a mitigating factor in the calculation of fines.
Some authorities have also provided express guidance as to what may be considered sufficient to merit a reduction in any fine – and the potential amount of such a reduction. For instance, the CMA's penalties guidance notes that an existing compliance programme may be taken into account in granting a fine reduction of up to 10% and in deciding whether to impose a director disqualification order, and that the CMA will consider carefully whether evidence of any compliance activities in a particular case merits a discount. The mere existence of compliance activities will not be enough. The CMA has published separate guidance to assist businesses to achieve competition law compliance.
Meanwhile, the Italian authority has had formal guidelines in place since 2018 which set out in detail the required content of any effective compliance programme and the criteria that it will apply to determine whether, and to what extent, it will award a fine reduction.
Most recently, Russia’s Federal Antimonopoly Service introduced a draft bill to Parliament, which seeks to foster a culture of compliance by defining the requirements for compliance programmes in the Competition Law. This is a small step following previous attempts to make compliance programmes mandatory – if not for all companies active in Russia, then at least for those which are controlled by the Russian state – and, at the same time, to remove or reduce liability for competition law breaches by companies that have taken all reasonable steps to implement a robust compliance policy and acted in accordance with it. But including a legislative definition should facilitate adoption of further reforms in this area in the future.
The DOJ issued detailed guidance on what it will look for when evaluating corporate compliance programmes. The key principles highlighted by the DOJ are to: (i) ensure the programme is well designed; (ii) assess whether the programme is being implemented effectively; and (iii) ask whether the programme works in practice.
This is largely in line with best practice developed in other jurisdictions. We have condensed the most important and common elements of guidance provided by competition authorities globally to comprise a list of top tips for building effective compliance:
Proper design and comprehensiveness |
Whilst it is generally recognised that there is no “one size fits all” model, authorities will consider a programme’s design, format and comprehensiveness, as well as its accessibility for employees and who takes operational responsibility for the programme within the company
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Risk Identification |
Effective compliance programmes should be tailored to a company’s business. The key competition law risks will vary depending on the nature and size of that business
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Risk assessment |
This involves considering in turn each of the risks identified above and assessing them as high, medium or low, for instance by reference to employees’ degree of exposure to antitrust law risk
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Risk mitigation |
This typically involves implementing suitable training activities, policies and procedures
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Periodic risk monitoring and review |
An effective compliance programme should feature review procedures and include proactive auditing - such as the collection of metrics and information - specifically aimed at uncovering any antitrust violations
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Culture of compliance |
Management (from the top down) must demonstrate a clear and unambiguous commitment to competition law compliance throughout the organisation
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Reporting, incentives and remedial action |
Compliance programmes should include mechanisms that allow employees to anonymously and confidentially report antitrust violations, provide incentives to ensure a programme is enforced and a process for handling remedial action taken by companies to prevent recurring violations
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