Compliance programmesCommitment to competition compliance
How does a company demonstrate its commitment to competition compliance?
Compliance with and commitment to competition compliance is usually demonstrated by:
- the existence and use of competition compliance manuals;
- training programmes and workshops (including obligatory annual training refresher courses and training for new employees); and
- including undertakings’ compliance policies in employment and director agreements in order to sanction possible anticompetitive behaviour.
It is of the utmost importance that companies ensure the compliance of their directors, corporate officers and employees.
In addition, companies are advised to set up whistle-blowing systems through which employees may notify management of abuses of competition law. The setting up of whistle-blowing systems will be mandatory after implementation of Directive (EU) 2019/1937 on the protection of persons who report breaches of Union law. A proposal for national legislation (government bill) is to be published during Spring 2022.
Companies may also hire in-house competition counsel and use a national or international network of external competition counsel. These experts may participate in board meetings of joint ventures formed by competing companies to ensure rules regarding the exchange of sensitive information are complied with.Risk identification
What are the key features of a compliance programme regarding risk identification?
All personnel – especially those involved in sales or drawing up vertical agreements, or agreements with horizontal elements – should identify potential risks and consult an in-house or external competition counsel before executing any measures with direct or potential competitors.
Competition compliance manuals should identify what kind of discussions, meetings, correspondence and transactions with competitors or potential competitors bear severe risks.
Correspondence with stakeholders using wording that is compliant with competition rules is key to compliance. Identifying risks relating to cartel behaviour (ie, price-fixing, market sharing, bid rigging or sales quotas), trade associations and discussing sensitive information is of the utmost importance. Typically, identifying risks also applies to an employee’s actions and behaviour outside of their role as an employee.Risk assessment
What are the key features of a compliance programme regarding risk assessment?
The key features of a compliance programme regarding risk assessment include scoping and high-level assessment, and detailed risk assessment.
The purpose of scoping and high-level assessment is to provide a basis for defining the organisation’s focus towards identifying topics for further risk prevention and management measures. In line with this aim, this assessment should be made on a broad basis before considering the effects of any countermeasures that have been taken. The results of the assessment results will show the actual status and changes to previous assessments. Observations regarding an assessment and related recommendations should be submitted to the undertaking’s chief financial officer or executive board for consideration and decision regarding action. Unless decided otherwise, high-priority competition compliance topics should be subject to high-level and detailed risk assessments.Risk mitigation
What are the key features of a compliance programme regarding risk mitigation?
A key feature of a compliance programme is that it should identify competition risks as early as possible, and encourage employees and officers to use whistle-blowing systems and ask for further advice if they identify potential compliance risks. The company’s management should discuss potential competition risks immediately after they are identified with external or in-house counsel and give procedural (in-house) guidance to employees and officers in the form of compliance checklists (eg, dos and don’ts charts) detailing the most important identified risks and procedures from which they may quickly refer to. The checklist’s revision history and validation information should be included, to ensure its proper use.Compliance programme review
What are the key features of a compliance programme regarding monitoring and review of business practices?
The key features of a compliance programme regarding reviewing business practices are that it should include guidelines on:
- dos and don’ts;
- retail pricing;
- how to behave as a market dominant player;
- contact and information exchange with competitors; and
- action in trade associations and dawn raids.
Compliance programmes are specific to individual companies and depend on the company’s industry, status, market position and its competitors’ market positions. While most companies have competition compliance manuals, introducing and implementing guidelines can be challenging, especially for smaller companies that only have a presence in Finland. Finnish subsidiaries of international groups generally follow the group’s programmes.