On 10 February 2012, the French Competition Authority published the final version of its framework document on competition law compliance programmes and of its notice relating to the antitrust settlement procedure. The two documents maintain the key principles of the drafts submitted to public consultation in October 2011, but take into account certain criticisms that had been made.
THE FRAMEWORK DOCUMENT ON COMPLIANCE PROGRAMMES
Corporate compliance programmes are mechanisms improving the culture of competition law within companies, in order to prevent infringement of competition rules, to detect possible breaches and to better manage their consequences.
The Competition Authority considers that, to be efficient, a compliance programme must contain the five following key features, which should be set forth in a readily available and understandable documentation:
- the existence of a clear, firm and public position adopted by the company’s management bodies and, more broadly, by all managers and corporate officers;
- the commitment to appoint one or more persons empowered, within the company or organisation, to develop and monitor all aspects of the compliance programme;
- the commitment to put in place effective information, training and awareness measures, in ways compatible with labour legislation;
- the commitment to set up effective control, audit and whistleblowing systems, in ways compatible with labour legislation;
- the commitment to set up an effective oversight system, in ways compatible with labour legislation.
Each of these elements is detailed in the framework document.
Criticized for its “one-size-fits-all” initial approach, the Authority clarifies its position by stating that compliance programmes must be tailor-made depending on the size, the organization and the nature of activities of each company.
Regarding the consequences of compliance programmes in the occurrence of an infringement, the Authority reasserts its refusal to automatically “reward” ex post companies that have a compliance programme, but reiterates its wish to encourage, ex ante, companies to develop and improve such programmes.
Thus, the mere existence of a compliance programme will not be considered, per se, as a mitigating factor that can lead to a fine reduction. Similarly, it will not be treated as an aggravating factor, the Authority considering that, in that case, it may be more appropriate to bring criminal proceedings.
Finally, and this is probably the main change to the initial draft, the Authority waives the automatic link that was made between detection of an infringement thanks to a compliance programme and application for leniency. The framework document distinguishes between cartels detection, for which the more adequate remuneration for a compliance programme is the opportunity to seek leniency, and the detection of infringements that are non-eligible to leniency (abuses of dominant position and vertical restraints in particular), for which the immediate and voluntary stop of the practice by the company may be taken into account as a mitigating factor.
For companies that, at the time of the infringement, do not have a compliance programme or have a programme that did not meet the framework document requirements, they may, in the context of the settlement procedure, commit to set up a compliance programme meeting the requirements of the framework document and get a reduction of their fine of up to 10%, for a total reduction of up to 25% under the settlement procedure
THE NOTICE RELATING TO THE SETTLEMENT PROCEDURE
Introduced in 2001 by the New Economic Regulations Law, the French settlement procedure allows an undertaking that has been the subject of a statement of objections by the Authority, to voluntarily waive challenging the notified charges in exchange for a fine reduction. This waiver may also be accompanied by submitting behavioral or structural commitments, which can lead to a second reduction in the sanction.
As in its draft of last October, the Authority considers that to benefit from the fine reduction, the undertaking should not contest the reality of the practices (i.e. facts, object and/or effects, characteristics, duration, role of the concerned undertaking), the legal qualification, the procedure regularity and the validity of the notified charges (notification, competence of the Authority, etc.).
If a company waives its right to challenge objections in accordance with the requirements of the notice, it can get a reduction of its fine of up to 10%. If the company also undertakes to modify its future behaviour through commitments, the Authority can reduce the fine by a further 5% to 15%.