The Antitrust Compliance Programme: A Tool for Business Competitiveness


published on 22 February 2023 | reading time approx. 5 minutes

The proper implementation of competition law by companies is an imperative for competitiveness, as potential penalties are high in all jurisdictions. Indeed, recently, rules have tended to align worldwide on the heaviest sanctions, expressed in fines of up to 10 percent of worldwide turnover for the worse offences on the premise that the more dissuasive the fines, the more companies will comply.[1]

National applications aside, since these rules are being standardized (OECD, EU) and they apply regardless of the size, sector or economic circumstances of the companies, one can therefore speak of a global "level playing field".

The recently adopted EU “ECN+” Directive lifts the previous sanction cap (3 million EUR) to 10 percent of the cumulative worldwide turnover of each of a body’s members which, in the words of the French Competition Authority (“FCA”), constitutes a "Copernican revolution".

In the wake of massively public funded recovery plans, it is safe to assume that the competition authorities will be more intransigent in implementing those rules. The illicit appropriation of the gains of future growth through anti-competitive practices is thus likely to expose their authors to extremely severe sanctions. However, competition law is one of the most complex laws in the world, due to its dual legal and economic dimensions.

In this context, the necessity to implement a robust[2] antitrust compliance programme is becoming more acute.

Why an antitrust compliance programme? An option in theory, a necessity in practice

In France, antitrust programmes are not mandatory, contrary to the "Sapin II" law of 2016 which compels companies (with than 500 employees and 100 million euros turnover) to set up an anti-corruption programme.

Since 2017 and the so-called "Floor coverings" decision,[3] the FCA dropped the practice of reducing the penalty a company is exposed to when a compliance programme existed, which begs the question whether it is of any use to implement one at all.

However, companies should not base their antitrust compliance on the possible reduction of fines they may obtain from the FCA, but to avoid as far as possible the commission of infringements, the consequences of which are substantial and strategic.

While antitrust compliance and leniency programmes should not be confused, they are linked: the former can allow for the early disclosure of a cartel, which can pave the way for a penalty exemption under the latter. Further, an antitrust programme preserves the company's image and reputation whose deterioration is often the most damaging factor.

The former Chairwoman of the FCA, Ms. Isabelle de Silva considers the implementation of an antitrust compliance programme as part of a corporate responsibility process[4] (that is assumed towards all stakeholders). Thus, the absence of a programme (or an ineffectively implemented programme) exposes a guilty company to more severe fines if it the FCA views this was the result wanting to secretly set up anti-competitive practices.

How can a credible and effective programme be put in place?

Convinced that no single framework can encapsulate the variety of approaches to implementing a programme, following the “Floor coverings" decision, the FCA has replaced its framework which contained a potential fine reduction (up to 10 percent) with specific guides. For example, SME’s now have a guide tailored to stakes that their sector is facing. In 2020 the FCA has led a working group made up of a panel of experts to identify the most effective tools and best practices for compliance. In light of these findings a programme should contain these pillars:
  • The commitment of the top management to instill the culture of integrity, transparency and compliance within the company
  • The appointment of a compliance officer (with independence and resources) in charge of deploying the programme within the group through a correspondents’ network
  • The development of a competition risk map, to identify and prioritize the risks, which should form the basis of the programme itself
  • The implementation of effective information, training and awareness-raising measures, including for the governing body
  • Continuous monitoring of the effectiveness of the programme through indicators and the deployment of eventual corrective measures to avoid misapplication of the rules or in order to adapt the programme in case of legal evolutions

Multinationals should adapt their programme to local specificities, as its overall supervision depends on the decentralized structure of the group. However, it is advisable to establish a minimum level of supervision over the application of the programme by the group's subsidiaries.

Overview of the position of other national authorities

Like the French Authority, the Bundeskartellamt considers that the existence of a compliance programme – ex ante or ex post – cannot be considered as a mitigating circumstance. However, it should be noted that in a 2017 tax/anti-corruption law case,[5] the German Federal Court of Justice recognised that a Compliance Management System could be considered as an attenuating circumstance when setting an administrative fine, even if the system was modified during the proceedings. While some academics would like to see this reasoning transposed to competition law, the Bundeskartellamt has not yet taken a position on the issue. In 2021, the German legislator has now created a provision according to which antitrust compliance measures are to be taken into account in cartel proceedings in the context of the assessment of fines (Section 81d (1) sentence 2 GWB). It remains to be seen how the Federal Cartel Office will implement the new legal regulation in practice.

Other authorities prefer to take a more flexible approach and accept that an antitrust compliance programme may in some cases be considered a mitigating factor.

The CMA (UK) grants penalty reductions of up to 10 percent when “top down” policies appropriate to the company's risk profile have been taken.

The AGCM (Italy) guide foresees several reduction tranches (5-15 percent) based on factors like the concrete ability of the programme to detect and terminate infringement or the remedies.

The CNMC (Spain) favors more ex ante programmes. Bringing to its attention a violation discovered through the programme and actively and effectively collaborating with the CNMC may constitute a mitigating circumstance.[6]

Likewise, the CB (Canada) may consider the ex ante programme when determining the amount of the penalty.
The DoJ (US) uses a flexible approach to possibly grant a 3 basis-point culpability score reduction when faced with an “effective” programme, recognizing that no compliance programme will ever prevent all criminal activity by a company's employees. A programme can be a mitigating but also an aggravating circumstance. The latter is applied in Germany, in case of an ineffective application of the programme or its absence. The UK and Italy, only consider it aggravating when it was used to conceal or facilitate an offence, to mislead the authority about its nature and/or to engage in conduct intended to avoid the investigation.

Echoing the adage "Prevention is better than cure", the question of the usefulness of an antitrust compliance programme no longer seems to arise today. While some authorities encourage its implementation through the prospect of a reduced sanction, others – such as in France and in Germany – consider that the risk management it allows is in itself a sufficient reason for companies to use it, the challenge being to avoid so-called "sham" programme.

[1] On this issue, see E. Combes: "quelles sanctions pour les cartels, une perspective économique", in Revue Internationale de droit économique, 2006.  The amount of fines imposed by the Authority between 2009 and 2019 amounts to almost 5 billion euros.
[2] The term "antitrust compliance programme" will be used in this article as equivalent to "competition compliance programme"
[3] Decision of 18 October 2017, No 17-D-20, cf. in particular paragraph 464: "The Authority specifies, moreover, that the development and implementation of compliance programmes are intended to be part of the day-to-day management of companies, particularly when they are of a significant size. Commitments to implement such compliance programmes are therefore not intended, in general, to justify a reduction in the penalties incurred for competition law infringements, especially in the case of particularly serious infringements such as cartels and exchanges of information on future prices and commercial policy.”
[4] Remarks by the Chair of the French Competition Authority at the Webinar of 12 January 2021 organised by the Competition Review entitled "2021 Antitrust Compliance Awards #1 Why Antitrust Compliance? Competition Agencies' Points Of View". 
[5] Decision of the German Federal Court of Justice of 9 May 2017, BGH 1 StR 265/16.
[6] CNMC decision of 26 July 2018, S/DC/0596/16, Estibadores Vigo.
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