Compliance programmes

Commitment to competition compliance

How does a company demonstrate its commitment to competition compliance?

A company can demonstrate its commitment to competition compliance by ensuring it provides sufficient and ongoing resources, including staffing and accessibility, to its compliance department. Compliance programmes should have adequate access to management and executives and promote reporting without fear of retaliation. Another way to demonstrate a company’s commitment is to continuously re-evaluate and test its compliance programme and update it to address the results of internal evaluations and changes to external circumstances. In addition, companies can demonstrate a commitment to competition compliance through training their employees to identify and report compliance concerns.

Risk identification

What are the key features of a compliance programme regarding risk identification?

Any compliance programme should be specifically tailored to the company and the specific risks the company faces. To be effective from a risk identification perspective, a programme should be designed to detect the types of misconduct most likely to occur in the company’s line of business. The compliance programme should address varying risks related to the locations of the company’s operations, the industry sector and competitiveness of the market and the regulatory landscape. A company should examine its position, as well as the overall market concentration, in the product and geographic markets in which it sells its products and services. The company also should carefully assess the tender process in place and whether employees participate in any trade associations or industry gatherings.

The compliance programme should also focus on any business units and functions within the company that are at risk of engaging in collusive behaviour with competitors. A company should devote greater resources to high-risk areas and give greater scrutiny to high-risk transactions.

The company should continuously update and revise the compliance programme based on changes to the company’s business, competitive dynamics and regulatory landscape. The company also should incorporate any lessons learned from its own experience as well as from other companies operating in the same industry.

Risk assessment

What are the key features of a compliance programme regarding risk assessment?

The compliance programme should provide clear standards and policies specifically tailored to the business and potential risks the company faces. These standards and policies should include hypothetical situations specific to the risks that apply to the company’s business, which will help employees identify potentially unlawful conduct.

The compliance programme also should identify the legal personnel to contact or a hotline number to call should employees identify potentially unlawful conduct. It also is important that senior executives of the company promote the importance of antitrust compliance and encourage employees to report any potentially unlawful conduct.

Risk mitigation

What are the key features of a compliance programme regarding risk mitigation?

A compliance programme should include regular training and clear protocols for employees to follow should they find themselves in a situation that presents an antitrust risk. Employees should be instructed to immediately stop any potentially illegal conversation with a competitor and explicitly announce that the employee will not engage in such a conversation. Employees should be instructed further to immediately report any potentially illegal communication with competitors to their supervisor and the legal department.

Compliance programme review

What are the key features of a compliance programme regarding monitoring and review of business practices?

Companies should regularly review and update their compliance programmes and policies. Audits could be conducted through informal interviews or through screens or software tools designed to flag potential antitrust violations. Larger companies, for example, should routinely conduct unannounced audits of the documents and communications of high-risk employees.

The compliance programme should also be revised to account for any antitrust compliance incidents detected. A failure to do so may result in the perception that their compliance programme is merely a ‘paper policy’ that is not taken seriously.