Following a consultation carried out in 2010 by the OFT on competition law compliance guidance for companies and directors, the OFT published on June 27, 2011, the final versions of its guidance material. The principal documents published were:
- How Your Business Can Achieve Compliance is aimed at businesses and their advisors, and sets out the OFT's recommended risk-based, four-step approach to creating a culture of competition law compliance.
- Company Directors and Competition Law explains the level of competition law understanding expected from directors. It outlines steps they should take to prevent, detect and stop infringements of competition law.
So far as concerns a director's detection and prevention duties, a particular point of interest in the second document is the comment that a director with overall responsibility for a business area (but not immediate management responsibility over individuals responsible for an infringement) should make "reasonable enquiries" so as to seek to identify competition law breaches (presumably on a fairly regular basis). Non-executive directors similarly should make "reasonable enquiries" of the executive directors so as to satisfy themselves that the executive directors have, amongst other things, "taken appropriate steps to identify and assess the company's exposure to competition law risks".
Although these materials relate specifically to the UK, they represent best practice in the EU in the area of competition law compliance.
This guidance follows the publication in 2010 of the OFT's revised guidance on Director Disqualification Orders in competition law cases, which sets out how it intends to use the sanction to deter anti-competitive activity. At the time, the OFT undertook to provide company directors with practical guidance on their duties under competition law.