- Has your national competition authority published guidelines on competition compliance programmes (“CCPs”)? If so, what are the key components of an effective CCP?
- Are there any recent cases in your jurisdiction where the NCA/competent courts have discussed the impact of CCPs?
- What arguments have been taken into account in relation to a CCP? Has the fact that a company has a CCP been assessed in terms of the effort made or the results achieved, i.e. the efficiency of the programme? Is the focus on future changes in CCPs or on existing programmes?
- Has the role of the management and/or employees of the company been assessed with respect to preventing, participating in, detecting and reporting violations, or remediating violations? Is there a link between the role of the company's management and/or employees and an effective CCP?
- Has the fact that an undertaking has a CCP been helpful in reducing a fine for an infringement of competition law? What facts, arguments or commitments were used to justify the reduction and what is the maximum reduction that can be granted? If a reduction is not granted, why not?
- Are CCPs (their adoption or updating) used as evidence for "self-cleaning" measures when an economic operator risks being excluded from a public procurement procedure for collusive behaviour?
- Please indicate any additional considerations / rules, trends that are important in your country in relation to CCPs.
- Are there legal developments on the horizon in relation to CCPs?
jurisdiction
1. Has your national competition authority published guidelines on competition compliance programmes (“CCPs”)? If so, what are the key components of an effective CCP?
The Austrian National Competition Authority (“Bundeswettbewerbsbehörde”) together with the Austrian Economic Chamber published a German language brochure on “antitrust law and compliance” in June 2023. The brochure includes the following five principles for effective CCPs:
- There is no “one-size-fits-all” approach when it comes to CCPs. Every company is different in terms of structure, resources and principles. There is a wide range of possible compliance measures, and it is recommended that companies consult with an advisor to decide on a CCP that is best suited for them.
- Competition compliance is not just the responsibility of an individual employee. It must be considered by senior management and an internal policy needs to be adopted.
- Compliance measures must be implemented effectively and practiced across all levels of management and staff to minimize risks. Every employee should be aligned with the company’s values and this commitment should be reflected in employment policies.
- Compliance is a dynamic process that is never complete. Ongoing monitoring and evaluation are essential to assess whether current measures are still effective, need adjustment, or if new risks have emerged.
- To be able to establish an effective CCP, it is crucial to understand legal boundaries and identify potential risks. Recognizing the company’s specific risks is the foundation of an effective CCP.
2. Are there any recent cases in your jurisdiction where the NCA/competent courts have discussed the impact of CCPs?
In recent decisions, the implementation of a CCP was considered as a mitigating factor when calculating the fine in cartel court proceedings. However, it should be noted that all decisions, in which a CCP led to a reduced fine were terminated by means of a so-called settlement (i.e. a consensus-based termination of the cartel court proceedings in cooperation with the Austrian NCA). Austrian law does not explicitly regulate the consideration of CCPs in the assessment of fines and, as of now, it is unclear if the existence of a CCP will lead to a reduced fine in cartel court proceedings where no settlement is reached.
3. What arguments have been taken into account in relation to a CCP? Has the fact that a company has a CCP been assessed in terms of the effort made or the results achieved, i.e. the efficiency of the programme? Is the focus on future changes in CCPs or on existing programmes?
The Austrian NCA and the cartel court (Higher Regional Court of Vienna as Cartel Court) have taken a positive view of CCPs if the measures implemented are suitable for preventing future violations. However, the mere existence of a CCP is not automatically considered a mitigating factor in every case as otherwise there would be no incentive to implement an effective CCP.
In one case, compliance efforts that were implemented before a dawn raid led to a reduction of the fine (cf. OLG Wien 26.11.2014, 29 Kt 60/14). In another case, compliance efforts following a dawn raid were also taken into account as a reason for a reduction of the fine (cf. OLG Wien 3.3.2015, 25 Kt 76/14). We are not aware of any decisions where the Cartel Court has provided substantive comments on the efficiency of a CCP or has assessed it in terms of results.
4. Has the role of the management and/or employees of the company been assessed with respect to preventing, participating in, detecting and reporting violations, or remediating violations? Is there a link between the role of the company's management and/or employees and an effective CCP?
To prevent violations, it is important to raise awareness by educating employees and the management about competition compliance through frequent trainings. The active cooperation of the employees and the management with the compliance department is important to prevent violations by identifying potentially problematic behaviour at an early stage. Unless there is a clear tone from the top that competition compliance is considered very important in a company or group of companies, a CCP will normally not be effective.
5. Has the fact that an undertaking has a CCP been helpful in reducing a fine for an infringement of competition law? What facts, arguments or commitments were used to justify the reduction and what is the maximum reduction that can be granted? If a reduction is not granted, why not?
In past decisions, the existence of a CCP led to reduced fines. However, there is no automatic minimum/maximum reduction as the assessment of a fine (and possible aggravating or mitigating factors) is made on a case-by-case basis. In the published decisions where a reduction of a fine was also granted due to the existence of a CCP, no reasons were provided about why the CCP led to a reduced fine.
6. Are CCPs (their adoption or updating) used as evidence for "self-cleaning" measures when an economic operator risks being excluded from a public procurement procedure for collusive behaviour?
For the purpose of a successful self-cleaning in Austria, an economic operator has to set specific measures such as (i) damage compensation, (ii) active collaboration with the investigating authorities and (iii) concrete technical, organisational, personnel related and other measures which are suitable to avoid further misconduct. The introduction of a high-quality CCP (or re-sharpening of an existing system) can be taken as evidence for concrete technical and organisational measures in public procurement procedures in Austria to prevent further misconduct and can be used as evidence for self-cleaning
7. Please indicate any additional considerations / rules, trends that are important in your country in relation to CCPs.
While in previous cases the existence of a CCP repeatedly did not result in a reduction of a fine, there are now more cases where the company’s CCP has been a reason for a reduction of the fine. However, all these decisions, where CCPs led to a reduced fine, were terminated by a settlement.
8. Are there legal developments on the horizon in relation to CCPs?
We expect an amendment of Sec 83 (2) Federal Public Procurement Act regarding self-cleaning to restore professional reliability in public tenders soon.