Compliance programmes

Commitment to competition compliance

How does a company demonstrate its commitment to competition compliance?

The usual way a company demonstrates a commitment to competition compliance is to approve a competition compliance programme (CCP). Along with the CCP, the companies that care about competition compliance also conduct internal training for employees on fair and legitimate ways of communication with counterparties, develop a transparent and non-discriminatory trade and commercial policy, cooperate with state bodies on competition issues, and conduct comprehensive due diligence of contracts and interactions with counterparties.

The list of arrangements on the competition compliance varies from one company to another depending on the company’s goals, values and business features. With each passing year, Ukrainian companies, especially those controlled by parents from foreign jurisdictions with a well-established law regulation and practice in the field of competition compliance, pay more attention to this matter.

Risk identification

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

A cornerstone of risk identification is the comprehensive due diligence of the company’s activities, as well as internal monitoring of employees’ compliance with established competition policies, internal rules and procedures. Normally, this process starts with the identification of the areas where the compliance risks are likely to be especially high. During such an identification, various factors should be analysed. For instance, the undertaking shall consider its market share (to avoid the dominance risks), and examine employees’ interactions with counterparties, especially those of the company’s management (to prevent potentially anticompetitive concerted practices). Besides, it also beneficial to involve a professional who will constantly monitor the undertaking’s activities, as well as the legislation changes, in order to identify all possible risks in advance.

Risk assessment

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

A risk assessment constitutes a process of weighing and balancing the identified risks and their possible negative consequences, as well as the probability of a risk materialising. This can involve assessing whether each identified risk is extremely significant and material or immaterial, along with evaluating its adverse effects and the probability of occurrence. Risk assessment should be a constant process, although there is no requirement regarding how frequently assessments should be carried out in competition law.

Risk mitigation

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

To mitigate the risk of competition infringements occurring an undertaking may:

  • implement the internal training for employees on how to duly behave with the counterparties;
  • establish a procedure for obtaining advice on potential risk issues; and
  • provide checklists and manuals for employees.

 

Such arrangements vary depending on the undertaking’s preferences, goals and business conditions.

Compliance programme review

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

From a practical standpoint, reviewing a CCP is an essential part of its effective implementation. Generally, the company should constantly review previously identified risks and review whether the CCP is implemented in accordance with its declared principles. Such reviews are particularly important in the event of significant changes in the company’s structure or activities, as well as legislative amendments. There are no negative consequences for failing to conduct a CCP review, as there are no legislative requirements concerning the use of CCPs in Ukraine.