EU Competition Law Compliance Update

November 29, 2011

On Nov. 23, 2011, the European Commission (EC) unexpectedly produced its own guidance on EU competition law compliance (which it calls "a sort of competition highway code"), following the trend set by national regulators in the EU. The publication of this guidance provides another reminder of the importance of a suitable competition law compliance programme in the EU and of the characteristics of a robust and effective programme.

The EC makes it clear that it supports compliance programmes, tailored to the business in question. As with other regulators, such as the UK Office of Fair Trading (OFT), the EC suggests a proactive risk-based approach, including risk identification, assessment, mitigation and review, backed by “unequivocal senior management support”. The guidance specifically makes the points that ignorance of the law is no defence and that “being small is no excuse for not complying with the applicable EU or national competition rules”.

In a departure from the OFT's approach, the guidance also confirms that, although all compliance efforts are welcomed, the existence of a compliance programme will not be used as a mitigating factor justifying the reduction of any fine imposed for an infringement of competition law. This is because the purpose of a compliance programme is to avoid an infringement in the first place. On the other hand, the existence of a programme will not be considered as an aggravating circumstance justifying an increase in a fine should there be an infringement. This is because “if the programme has failed . . . the sanction will come in the form of the fine imposed”. Therefore, as the EC points out, "a credible competition compliance programme can only deliver benefits to a company".

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