On April 20 the Italian Competition Authority (“AGCM”) launched a public consultation in order to gather comments on its draft “Guidelines on antitrust compliance”.
The document is of huge importance since it provides for the first time the view of the AGCM on how an effective antitrust compliance program should be established and managed. Even more importantly, the draft guidelines show how the Authority will weigh the adoption of compliance programs as a mitigating circumstance at the moment of calculating fines in antitrust investigations.
In this regard, it has to be recalled that the AGCM had already provided some general and exemplificative guiding principles on how the programs should be adopted and implemented and had already qualified antitrust compliance programs as a mitigating circumstance allowing a reduction of the basic fine up to 15%. Across Europe, only competition authorities in UK, France and Switzerland adopted a similar approach as Italy, while the EU Commission values compliance programs positively but does not consider them as mitigating circumstance. However, the criteria followed by the AGCM until today to adjust the percentage of reduction depending on the circumstances of each case were not clear at all.
One of the main question marks was whether the adoption of a compliance program before the launch of an investigation would have entitled the company to the penalty reduction in case an antitrust investigation was subsequently opened by the AGCM. Indeed, one might wonder whether a compliance program that has not prevented an antitrust infringement meets the AGCM’s expectations and is entitled to be qualified as a mitigating circumstance. As a consequence of this uncertainty, many stakeholders today prefer not to adopt an antitrust compliance program and wait for the launch of an investigation by the AGCM before taking this step.
In its draft Guidelines on antitrust compliance published on April 20, the AGCM finally made its position on this issue clear.
- Compliance programs adopted by a company after the launch of an investigation (but before the statement of objections): they entitle companies to a reduction of the fine up to max 5%.
- Compliance programs adopted before the launch of an investigation:
- If the company puts an end to the anticompetitive conduct before the investigation is opened, a reduction of the fine up to max 15% can be granted.
- If the program is deemed manifestly inadequate due, for example, to the involvement of the top management in the anticompetitive conduct, a reduction of the fine up to max 5% can be awarded provided that the company runs a substantial upgrade of the program and implements it before receiving the statement of objections.
- If the program does not allow to prevent the anticompetitive conduct but is not deemed manifestly inadequate (i.e.: top management not involved in the infringement), a reduction of the fine up to max 10% can be granted, provided that the company adequately integrates the program and implements it before receiving the statement of objections.
This is a major breakthrough by the AGCM, in an attempt to trigger a more proactive and less fearful approach of companies of all sizes to antitrust rules. The Italian Authority recognizes that the adoption and implementation of a compliance program fitting the structure of a company and the market in which it operates is likely to prevent breaches of competition law and deserves to be qualified always as a mitigating circumstance when it comes to the calculation of fines (except for extreme cases where the program did not work).
It is possible to submit comments in response to the draft guidelines by May 20, 2018.