Advocacy as the Agency's permanent tool
Ever since its establishment in 1995, the Croatian Competition Agency ("Agency") has shown strong commitment in the field of advocacy by offering undertakings not only general information on avoiding infringements, but also very practical advice and instructions by working together with professional associations.
This is no wonder, given that the first ever implementation of competition rules in Croatian legislation, which at that time (1995) was still heavily influenced by the country’s socialist heritage, resulted in the introduction of fundamentally novel legal institutions. The Agency was aware that it was too difficult to expect businesses to implement full compliance with competition rules as long as parts of the property, obligatory, and corporate law were undergoing full transition.
Nevertheless, with the stabilisation of the Croatia’s legal system, the Agency began applying stricter competition rules, while the purpose of the penal policy remained partly educational. This rather lenient approach with its aim to educate and accustom undertakings to the requirements mandated by competition law (reflecting in so far only symbolic fines) has been cast aside recently. However, the Agency remains committed to advocacy and has launched a new compliance initiative by introducing a new Programme of Compliance.
The Agency's new Programme of Compliance
The Agency recently presented its practical Programme of Compliance of Undertakings with Competition Rules ("Programme"). In the context of current practice, this programme addresses complex situations that have not been covered by the Agency’s previous decisions, as well as certain practical examples of undertakings' actions.
The Agency stresses that the preparation of and constant follow-up to a compliance programme is the key to risk reduction. Companies are expected to proactively commit to and invest their own resources to avoiding infringements.
Furthermore, the Agency has implied that large companies should endeavour to make a compliance programme part of their company culture, along with continuous checks performed on the managers in charge of compliance implementation, as well as of other employees. Although this approach is already a norm with respect to a significant portion of the Croatian market, for some undertakings, the Programme might also be a factor that will additionally raise their awareness of compliance matters and lead to a more significant role for compliance managers in their organisations.
In a clarity which differs from the Agency's previous general advocacy approach, the Programme explicitly recommends that undertakings should implement the following additional measures of reducing the risk of infringement:
- organisation of periodical educational activities for employees concerning competition rules, conducted by experts in the field of competition law;
- integration of rules related to employees’ mandatory behaviour in company policy;
- development of a system which will monitor all meetings with competitors;
- implementation of a system which will enable employees to receive advice before being exposed to risk (for example, legal advice regarding a specific contract);
- ensuring the notification of competent managers and/or legal advisors on joining professional organisations and similar associations or participation in business meetings at which there is a possibility of meeting with competitors;
- development of a system in which the employees will be able to report any suspected non-observance of competition rules, with guaranteed data confidentiality.
It should be pointed out that the Agency, while it is prepared to provide assistance to undertakings, also recommends requesting specialised legal aid in sensitive matters.