Challenges and strategy in competition compliance

Dinner organised by Concurrences Review with keynote speaker Emmanuel Combe (Autorité de la concurrence) and in-house counsels Jean-Baptiste Carpentier (Veolia), Marie-Pascale Heusse (BNP Paribas) and Jean-Baptiste Siproudhis (Atos).

François-Charles Laprévote

Compliance is a rapidly growing issue in many areas, including the fight against corruption through the Sapin II law. In the area of competition law, the Authority had drawn up a framework document on 10 February 2012 on competition compliance programmes. This was withdrawn in 2017 as the regulator took compliance with antitrust rules for granted. Thus, the implementation of a compliance programme is no longer an element that would lead to a systematic reduction in the level of sanctions for companies.

Emmanuel Combe

Broadly speaking, compliance can be defined as a set of private and public actions, whether voluntary or not, aimed at informing and enforcing compliance with the rules of law by the various players in the company, both shareholders and managers. Compliance is therefore not limited to compliance programmes alone, but if they constitute an important element of it. In the case of antitrust, the implementation of a compliance programme is not imposed by the regulator but results from a voluntary approach by the company. A PWC study highlights that antitrust risk does not seem to be a priority for companies in their overall risk assessment. This could be explained by the fact that an anti-competitive practice such as a cartel, unlike other infringements, benefits the company, in particular through higher prices. In an ideal Gary Becker world, deterrent antitrust sanctions would naturally encourage shareholders to control and punish managers who want to violate antitrust rules. For Gary Becker, the primary purpose of an antitrust sanction should be to deter officers from breaking the law, by confiscating the entire illegal gain and taking into account the low probability of detection. In practice, with the exception of the United States, managers are not personally sanctioned by the public authorities. In France, Article L.420-6 of the Commercial Code has never been applied. Secondly, it is possible that before the 2000s and the sharp increase in sanctions in Europe, there was an implicit convergence of interests between managers and shareholders to "let go" of antitrust infringements: shareholders derived a net gain (illegal gain from the cartel - amount of the fine), while managers pursued their personal objectives, particularly in terms of conditional compensation (bonus, etc.).,. Finally, it cannot be ruled out that there may be infringements through negligence or ignorance of the law, particularly in SMEs. If they want to reduce the incentive for managers to form cartels, managers have many levers at their disposal: for example, they must avoid "management by ambiguity", which consists in setting demanding objectives for managers without specifying the means of achieving them (legal or not). For their part, public authorities can also reinforce the information provided to companies on antitrust rules (preventive function); the reflection on possible sanctions against managers also deserves to be initiated, as was done in the United Kingdom with the practice of incapacitation (punitive function).

Photos © Léo-Paul Ridet

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