FCA will soon adopt a new framework document on competition compliance programmes: is yours up to standard?
Written By
Partner
France
As a partner in our competition & EU team in Paris, I specialise in contentious and non-contentious national and European competition law, compliance, commercial and distribution law. I am also active in the anti-bribery and corruption compliance sphere.
The French Competition Authority (FCA) recently opened a public consultation with a view to publish a new framework document on competition compliance programmes (deadline to submit contributions is 10 December 2021). This follows a request from stakeholders since the previous framework document published in 2012 was withdrawn following the reform of the settlement procedure in 2017. The FCA has therefore published a draft framework document (the “Framework document”) which explains the advantages of compliance programmes and identifies "good practices" to ensure their effectiveness.
The Framework document first stresses, probably stating the obvious, that the main benefit of a compliance programme for a company is to prevent financial and reputational risks. Indeed, by allowing early detection of potential anti-competitive practices, a compliance programme offers companies the possibility of quickly triggering leniency proceedings before the FCA and consequently being granted total or partial immunity from fines. As a reminder, the FCA may impose fines up to 10% of the infringing companies' worldwide turnover and the amounts of fines have been increasingly high in recent years.
According to the Framework document, compliance programmes should aim to prevent the risk of infringements and provide the means to detect and deal with infringements. This should be achieved through a set of concrete and effective measures as part of a tailored programme and the guidelines list 5 key points which must be included as part of an effective compliance programme:
- Making a public commitment with a clear, firm and public statement by all managers on the need to comply with competition rules and to support the implementation of the company's compliance programme.
- Appointing internal contact points and experts with the necessary authority, skills and resources who will be responsible for managing the compliance programme.
- Providing staff with information, training and awareness-raising on competition rules and the operational functioning of the compliance programme for all employees.
- Setting up monitoring and whistleblowing systems: the compliance programme should be enforced by internal regulations, clauses in employment contracts or individual compliance certificates and employees should also have an easy access to the designated compliance officers.
- Establishing mechanisms to ensure effective implementation with procedures for handling requests for advice and alerts as well as procedures for sanctions in case of non-compliance.
To help companies in setting up their compliance programme, the FCA recommends the involvement of specialist lawyers who can assist them at all stages of this process: the design of the programme, assistance in its implementation, awareness raising efforts, legal advice in case of detection of an infringement, etc.
The FCA’s press release is available here (in English) and the draft framework document here (in French).
Bird & Bird has developed a suite of award-winning electronic tools to help companies promoting competition law compliance within their organisation. Please try for free our Dawn Raid Game, download our Dawn Raid App and take a look at our competition law eLearning tools. If you are interested in implementing these tools as part of your competition law compliance programme, please contact us for further information on their content and costs.
For more information contact Thomas Oster and Eliott Costet.
