The Italian Antitrust Authority has broken ranks with the European Commission and introduced new Fining Guidelines which allow companies to obtain a reduction in a fine if they have effective competition compliance programmes in place.
The key word is 'effective'. The Guidelines provide that the mere existence of a compliance programme is not enough. What is needed is proof of the effective commitment to respect the programme and to monitor compliance at all levels of the corporate organisation. In line with international best practice, the Guidelines provide that compliance is to be pursued with appropriate tools as, e.g., specific risk analyses, adequate training sessions, direct involvement of management and a system of incentives and sanctions.
Clearly the Guidelines cannot set out what is a proper and full implementation of a compliance programme is in any one situation. So how the Antitrust Authority will apply the Guidelines remains to be seen.
If a company fully complies with the Guidelines the presence of a compliance programme can result in a reduction by up to 15% in any possible fine for non compliance with competition rules.
In previous decisions the European Commission has always denied that compliance programme could be considered a mitigating circumstance. The European Court supported the EU Commission’s position stating that competition compliance programme "does not alter the reality of the infringement and does not oblige the Commission to grant a reduction in the amount of the fine” (1). More recently, the Court of Justice in Schindler concluded that "So far as concerns the compliance programme established by the Schindler group, (…), it evidently had no positive effect and, on the contrary, made it more difficult to uncover the infringements at issue”, thus rejecting the argument that the EU Commission should have taken into account the implementation of its 'state-of-the-art’ competition compliance programme when calculating the fine (2). Consistently with this position, the European Commission Hearing Officer Wouter Wils has recently published a paper criticizing the OFT’s policy which considers compliance programme a mitigating factor that would reduce - by up to 10% - any fine that the OFT (today Competition and Markets Authority) might impose for a competition infringement (3).
Other than the introduction of the possibility of reduction of fines for having a compliance programme in place, the new Italian fining guidelines follow closely the Commission's 2006 fining guidelines. Another significant new feature is the introduction of the so called 'amnesty plus' which allows for a reduction of a fine for one infringement if a different infringement is signalled leading to a new investigation.