Perspectives on Antitrust Compliance: RILEY Anne, STEPHAN Andreas et TUBBS Anny (dir.)

Anne Riley, Andreas Stephan, Anny Tubbs

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to for review in this section.

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Competition law compliance is the subject of a multidisciplinary approach. It is a given that compliance programs are not based on a single model, but rather must be tailored to the specificities of each sector and even of each company. The motto of the directors of this collective research is therefore to understand diversity. In the first part, the basic elements are certainly recalled: involvement at the highest level of the company(tone at the top); assumption of responsibility by highly experienced managers; proper assessment of anti-competitive risks in order to deploy resources in the right directions; development of compliance know-how; encouragement of internal speak-up options; provision of internal incentives for proper appropriation of compliance objectives and tools (promotions, bonuses); monitoring of the adequacy and robustness of the program. But a formal approach is not enough to constitute good corporate governance and corporate citizenship. The approach must be continuously adapted and not stereotyped, dynamic and not static.

The second part presents some iconoclastic and therefore very interesting ideas. First and foremost is the questioning of classical management teachings in terms of strategies. Sean Ennis analyzes three types of strategies usually recommended: competitor selection; product differentiation; and defensive strategies. However, they introduce serious risks of anti-competitive drift. The selection of competitors amounts to identifying and discouraging "bad" competitors who are precisely "good" competitors in terms of competition law. Strategic defenses then consist in targeting these "bad" competitors in order to erect artificial barriers in front of them. Similarly, product differentiation often aims to organize cross-subsidies to finance low prices by selling higher prices in different geographical areas, on different customer profiles or on complementary products. Rosa Abrantes-Metz and Albert Metz then insist on the exploitation of data, which can be a powerful instrument of compliance, whereas its use by algorithms is known to facilitate collusion. Indeed, it is data analysis that has allowed the internal detection of cartel abuses on the stock market, notably in the Libor case.

After that, we are offered a direct entry into the field of influence of behavioral economics. Mary Gentile and Anny Tubbs discuss the promotion of ethical values. The motto is: Giving Voice to Values (GVV). Employees will be more easily mobilized if this dimension is explained. This should enable them to overcome their reluctance to become whistleblowers. Sheheryar Banuri insists on the need to properly frame whistleblower protection programs. Societal values and security are key, as well as listening to employees in general about their expectations within the company.

In the third part, the representatives of the competition authorities tend to confirm the above. Emmanuel Combe and Constance Monnier emphasize how compliance programs must draw all the consequences from the points of divergence and convergence between the interests of shareholders and those of executives. They insist on the appropriateness of exposing executives or employees to professional disqualification penalties, which are much preferable to prison sentences in the public opinion. It is true that such prohibition sentences can provide an equally strong or nearly as strong incentive to seek leniency on behalf of both the company and the individual. They conclude that a combination of spreading a true competition culture through compliance programs and traditional deterrence through fines high enough to confiscate illicit profits would likely be appropriate. Competition authority representatives from Canada, Brazil, and Hong Kong agreed on the importance ofadvocacy to further legitimize compliance programs.

Dina Kallay and Kirstie Nicholson, representing in-house counsel, confirm the investment of time and resources that compliance programs require. Nevertheless, Fabrizio di Benedetto reminds us that it is too easy for the company to pass the buck on the alleged existence of dishonest employees. It is the responsibility of managers to spread the requirement of compliance with public policy. They also argue for the necessary involvement of external actors, including lawyers, as they are able to share compliance best practices and failures. Samantha Mobley and Grant Murray attest to this complementarity between lawyers and in-house counsel. Ian Giles and Mark Daniels talk about all the incentives to give compliance programs more credibility and strength.

Integrating a true culture of competition implies understanding the room for maneuver that exists in certain cooperative ventures necessary to meet the challenges of our time: climate change, shortages of medicines and health products (Amelia Miazad and Sergio Napolitano). Amelia Miazad considers that this can break the cliché of neoliberalism that "sticks" to competition law. Dirk Middelschulte adds that compliance programs can even strengthen industries by encouraging them to explore and even invent a management style that is more in tune with the demands of the present day. Gemma Aiolfi and Cecilia Müller Torbrand, for their part, advocate bringing together the fight against corruption and the defense of competition law in the development of compliance programs. Andrew McBride, Jane Shvets and Timothy McIver demonstrate the interaction between compliance programs in these two areas.