- 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?
Yes. The French Autorité de la Concurrence (the “French NCA”) has published such guidelines.
The French NCA considers that companies should be guided by five pillars when drawing up their competition compliance programme: (1) public commitment by the company, (2) internal relays and experts, (3) information, training and awareness-raising, (4) control and warning mechanisms, and (5) a monitoring system.
2. Are there any recent cases in your jurisdiction where the NCA/competent courts have discussed the impact of CCPs?
No. The French NCA points out that the development and implementation of compliance programmes are intended to form part of the day-to-day management of companies, particularly when they are large. As a result, commitments to implement such compliance programmes are not generally intended to justify a reduction of the penalties incurred for breaches of competition law, especially in the case of particularly serious offences such as cartels and exchange of information on future prices and commercial policy. (Resilient Floor Coverings case, 18 October 2017).
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?
CCPs have not been considered in the context of justifying a reduction of the penalties.
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?
One of the five key pillars that should guide companies in developing their antitrust compliance programme is the company's public commitment. The first key to success is a clear, firm and public statement by management and, more generally, by all directors and officers of the need to comply with the competition rules and to support the company's compliance programme. It is essential for management to provide impetus to get all teams involved and lead the company in such a way that it ensures effective commitment to compliance. All levels of the company's organisation need to be involved: senior management, technical departments (in particular legal, IT and digital strategy managers), as well as sales teams.
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?
There is no case law in France illustrating this scenario, apart from settlement cases. Under the settlement procedure, a company does not contest the anti-competitive practices notified to it and undertakes to change its behaviour in the future by implementing commitments that may be similar to a compliance programme. The amount of the fine reduction is not predetermined. It depends on the circumstances of each case. On the other hand, if the undertakings given by the company are not complied with, the NCA may impose a fine. It considers that non-compliance with commitments is a serious practice, and all the more serious if the commitments are made at the initiative of the parties that have proposed them (Autorité de la concurrence 21 juin 2018 affaire Randstad).
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?
There is no relevant case law.
7. Please indicate any additional considerations / rules, trends that are important in your country in relation to CCPs.
Adopting a compliance programme in a company and entirely complying with it, is recommended.
8. Are there legal developments on the horizon in relation to CCPs?
We do not expect recent developments. However, we note that the use of digital tools for compliance programs (“compliance by design”) could raise new questions.