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A company can be held liable for anticompetitive behaviors of its employees, irrespectively of whether it authorized or not such behaviors. This exposes the company to high fines, expensive damages claims and significant reputational costs.
In some jurisdictions, employees (usually, legal representatives of the company but also officers and directors) can be held liable for the infringements and face administrative fines or even criminal sanctions (including prison). But this does not exclude the company’s own liability which is normally grounded in the lack of appropriate surveillance of the employees (culpa in vigilando).
In this context, the implementation of robust compliance policies and appropriate protocols to avoid anticompetitive behaviors is essential to minimize the economical and reputational risks associated with the infringement of competition rules. But when policies to prevent infringements fail, compliance requires a plan to quickly and effectively detect, investigate and react to such infringements.
Internal investigations have to be effective and, at the same time, respectful of the employees' rights, particularly those relating to privacy. Finding the balance between the effectiveness of the investigation and the full respect to Labor, Privacy and Data Protection laws might be a challenge, particularly in those jurisdictions, such as Spain, that protect the employee.
Today, most companies have competition law compliance programs in place. We have observed, though, that not all of them include specific protocols on internal investigations. More importantly, some of them do not have adequate policies in place that would allow future effective investigations.
As further explained below, a lawful access to electronic documentation of the employees is only possible if said Policy had been duly communicated in advance to the employee. In future administrative or judicial proceedings, the evidence gathered during the internal investigation would only be valid if the company proofs that the employee was informed about the existence of the policy, of the restrictions foreseen and of the scope and nature of the possible monitoring by the employer.
Second step: the design of a specific action plan for the internal investigation
In case the company suspects that there could have been a breach of competition law, the design of an ad hoc action plan is essential in order to ensure that the investigation is effective and, at the same time, that legal guarantees are respected and that the evidence obtained is valid in future judicial proceedings.
The elements to consider are essentially, the interviews and/or the access to documentation (including or not communications):
The internal investigation can consist in only interviews, only IT Search or in a combination of both. The decision will depend on the seriousness of the suspected conducts, the complexity and the likelihood that the employee could be cooperative or not during the search. Obviously, the unannounced access to communications is the most aggressive measure and shall be reserved to the most serious cases.
When planning the investigation, the company should also consider sending preservation letters to the employees under investigation to inform them of the need not to delete physical or electronic documentation until the investigation has finalized.
Ultimately, a final report shall include the conclusions of the investigation, as well as the measures taken by the company with regard to the facts discovered and the consequences for the employee, if any.
Special care over monitoring of employees' communications
The monitoring process of the employee's communications must have all the guarantees.
This point has been the most controversial as it leads to a confrontation between the employer's powers of supervising and monitoring of their employees and the employee's own right to preserve their private life and correspondence.
ii) the monitoring may be carried out on the devices provided by the company only, never on the employee's personal devices;
iii) the duration of the monitoring by the employer must be only the necessary to verify the possible infringement and must not be exceeded by accessing personal or non-related information for the purpose of the investigation;
iv) the number of people accessing the communications should be reduced to the minimum necessary;
v) the employer has to provide legitimate reasons to justify the monitoring of the communications;
vi) if possible, employer should establish a monitoring system based on less privacy-intrusive methods (i.e. that no other less restrictive measure is equally effective achieving that purpose); and
vii) the use of the results by the employer should be strictly limited to achieve the declared aim of the measure.
This test has already been applied by some national courts. In 2018, the Spanish Supreme Court decided on the Inditex case[2] by stating that a company access must be necessary and justified based on a reasonable suspicion of irregular conduct by the employee in question.
Final steps: considering possible disciplinary measures
The consequences for employees infringing competition law may even be more severe, as some jurisdictions contemplate prison penalties for individuals participating in competition law infringement. In Europe, this is the case of Denmark, United Kingdom, France, Czech Republic or Hungary. The US and Australian legal systems also establishes this possibility.
In any event, it is advisable to regularly re-evaluate the effects that such investigation may have on the employees' performance and activity of the company.
Additional considerations: applying for leniency
Corporations and individuals who report a cartel activity and cooperate with competition authorities can avoid fines and criminal conviction, where applicable, if they meet the requirements of a leniency program.
In those cases where, as a result of the investigation carried out internally, the company detects evidence of a cartelization , the submission of a leniency application shall be considered in order to obtain full immunity from the sanction (only for the first in the queue) or at least a reduction in the amount. The pace of gathering evidence to submit a complete leniency application to the correspondent competition authority is essential, for which collaboration of employees involved may be crucial.
At European level, except in certain jurisdictions such as France, Finland, Italy, Czech Republic or Hungary, both legal and natural persons may submit a leniency application, hence employees can benefit from the advantages of this program on an individual basis.
In fact, leniency applications submitted by the companies may be extensive to their employees, since the exemptions or reduction of the potential fines granted to the company would also benefit its employees who are considered as personally liable of the participation in the cartel in question (e.g. Denmark, Germany, Spain or United Kingdom). However, it should be taken into account that this extension may not be automatic, given that some jurisdictions require that employees explicitly declare that they want to be considered as co-leniency applicants or closely cooperate with the leniency application filed by the company (e.g. the Netherlands or Belgium, respectively).
It should be taken into account, however, that this does not apply the other way around (i.e. leniency application submitted by individuals does not cover their employers). This situation shall become problematic when it is the employee who applies for leniency separately, which can lead to a direct conflict of interests between the employee and the company. This usually happen, for instance, in situations of dismissal as a consequence of the investigation conducted internally.
This is certainly sensitive matter that requires the company to balance and treat with caution the measures implemented.
Most jurisdictions present strong similarities in relation to applicable law and procedures carried out when the companies suspect that an employee is infringing competition law. Nonetheless, significant differences can be seen among countries, even within the European Union.
Therefore, seeking local advice on what are the appropriate steps that should be carried out regarding an internal investigation and rules that should be followed can be a determining factor for a successful development of the investigation.
For further information or questions, our Bird & Bird offices have lawyers with extensive experience in this area and are well positioned to address the national specificities that companies can face when conducting internal investigations.
[1] Judgement of the European Court of Human Rights on Case Bărbulescu v Romania (Application no. 61496/08) - 5 September 2017.
[2] Judgement of Spanish Supreme Court (Appeal No. 1121/2015; ECLI: ES:TS:2018:594) – 8 February 2018.
[3] Judgement of Spanish Supreme Court (Appeal No.1674/2017 ECLI: ES:TS:2018:3754) - 23 October 2018.