Since fines issued by competition authorities are a major concern for companies, the implementation of antitrust compliance programs should be a priority for legal counsel. Indeed, antitrust fines are of a purely punitive nature and are usually followed by damage lawsuits filed by the harmed parties. Therefore, these fines amount to an abrupt loss and do not exempt the liable firm to compensate harmed parties for the damages suffered. As a consequence, all the companies involved in antitrust investigations should consider implementing a defensive strategy aimed at minimizing the amount of the fine.
An important tool to this end is offered by the Italian Competition Authority in its Guidelines on the method of setting fines. According to paragraph 23 of the Guidelines, the “… adoption and implementation of a specific compliance program, in line with the best European and national practices” amounts to a mitigating circumstance and allows a reduction of the basic fine up to 15% (para. 20).
Since antitrust fines and follow-on damages may be quite considerable, a 15% discount is a big deal for companies involved in investigations, also considering that fines may amount to several tens of millions euros and that the cost of antitrust compliance programs is usually rather low in comparison to the expected savings.
However, the approach to antitrust compliance programs as a mitigating circumstance is not consistent across Europe. While UK, France and Switzerland has adopted a similar approach as Italy, the EU Commission values compliance programs positively but does not consider them as mitigating circumstance.
The following measures should be taken to make antitrust compliance programs effective:
- adoption and implementation before the statement of objections (“CRI”) is sent to the parties (Tar Lazio, sentenza n. 4099 del 2016 – Mercato del calcestruzzo)
- clear and continuous involvement of the top management
- appointment of a compliance unit/officer
- risk assessment on the basis of the business sector and the context of operations
- provision of training upon antitrust compliance to managers and employees proportionate to the economic size of the undertaking concerned
- existence of appropriate monitoring, auditing and reporting mechanisms
- consistent disciplinary procedures and incentives for compliance