European Commission Gives High-Level Guidance on Antitrust Compliance

On 24 November 2011, the European Commission ("Commission") gave some guidance on how companies could comply with the antitrust provisions of European law putting forward what it calls "a road safety brochure ahead of the holiday period." While the brochure and the accompanying website give some high-level insights on what kind of compliance measures the Commission would see as adequate, there is no departure from the established Commission practice that a compliance program as such does not have any impact on the assessment of a matter, notably does not justify a reduction of fines.

The Commission stresses, however, that it is not its task to formally advise on (or even approve) individual compliance programs. Consequently, the brochure is not more than a helpful starting point predominantly for start-ups or smaller companies.

Background

The last years have shed broad light on the possible consequences of violations of antitrust laws, such as

• increasing fines imposed on undertakings and also on individuals in some national jurisdictions;
• detrimental media and press coverage;
• costs incurred during the legal proceedings and
• possible follow-on claims for damages.

Companies have recognized that compliance programs might help to prevent violations of antitrust laws. However, the Commission emphasizes that the sole benchmark of success for such a program is its effectiveness. While there is no "one-size-fits-all" approach for a successful compliance program, the Commission points out some key ingredients:

• a clear commitment from senior management that violations of antitrust laws will not be tolerated;
• a thorough analysis of the areas in which a the company concerned is most likely to run the risk of infringing antitrust laws;
• an acknowledgment by staff of the compliance program put in place;
• a constant training of the staff on the basis of up-to-date compliance material and
• a clearly identified contact point where advice can be sought in cases of doubt.

Despite the emphasis put by the Commission on compliance programs, it sticks to its long-standing position that the mere existence of such a program is not enough to counter the finding of an infringement or to justify any positive impact on the level of fines imposed. Whereas therefore the mere existence of a compliance program will not be considered as attenuating circumstance, the Commission also stresses that the failure of an existing compliance program will not be considered as aggravating circumstance either.

Overall, the brochure does not provide more than what it explicitly strives to do: to give some high level guidance on a topic that is already part – on a much more sophisticated level – of many companies' day-to-day business.