Introduction

Scope of application

Compliance program

Protection of whistleblowers

Audit and sanctions

Rules arising from the Sapin II Law

EU law

French law

Rules derived from competition law

Sapin II Law/Competition

Scope ratione personae

Scope ratione materiae

Scope

Development of plan

Measures included in plan

Inclusion in management report

Vigilance plan

Injunctions

Civil liability

Sanctions

Duty of vigilance (devoir de vigilance)

CSR programs

Reporting

Communication

Reporting and communication

Judicial sanctions

Risk to reputation, strategy and stability

Corporate Social Responsability (CSR)

Middlenext Code

IFA Corpus

AFEP - MEDEF Code

Types

Principles of governance

Principles incorporating CSR values

Principles

Comply or explain

Binding force

Private codes of conduct

Compliance

There is no such thing as a standard competition compliance program. Undertakings are encouraged to adopt a compliance program that sets out in writing a tailor-made strategy adapted to their particular situation, i.e. to the activities and products, markets, internal organization and culture, as well as the decision-making chain and mode of governance, specific to each entity.
In its 2012 brochur …

Content

There is no such thing as a standard competition compliance program. Undertakings are encouraged to adopt a compliance program that sets out in writing a tailor-made strategy adapted to their particular situation, i.e. to the activities and products, markets, internal organization and culture, as well as the decision-making chain and mode of governance, specific to each entity.

In its 2012 brochure, the Commission stresses the importance of having an effective compliance program. To this end, it identifies a set of characteristics that should guide undertakings in drawing up their competition law compliance programs, to ensure their effectiveness: a clear, firm and public commitment on the part of senior management to strict compliance with competition rules, the appointment of a contact person within the undertaking responsible for the proper implementation of the program and, more generally, of the compliance policy, and the introduction of awareness-raising, information and training initiatives for staff. These include awareness-raising, information and training initiatives for staff at all levels of the undertaking, from employees to middle management and senior executives, as well as the introduction of audit, control and alert mechanisms, and the implementation of a follow-up system in the event of the discovery of any infringements.

The compliance program must be supported by the undertaking's management, which must commit to creating a culture of compliance, unequivocally supporting it and devoting appropriate resources to it, in line with its size and the risks it faces.

As in other sectors, the compliance program must be based on an exhaustive analysis of the areas in which the risk of infringing the Union's competition rules is highest. The determination of areas requiring greater vigilance is based on an analysis of areas in which infringements have already been committed in the past, situations in which the undertaking's frequency or level of interaction with its competitors is most intense (such as industry meetings or discussions within professional organizations, or their day-to-day commercial relations), or market characteristics (respective positions of the undertaking and its competitors, barriers to entry, etc.). Exposure to risk can also vary considerably according to the position held by each member of staff. The Commission recommends that employees who are particularly concerned because of the functions they perform, and in particular those who have frequent contact with competitors as part of their job or through professional organizations, should be made aware of the fundamental issues and principles they need to bear in mind.

To ensure genuine compliance with the rules, the Commission recommends disseminating the compliance strategy to all levels of the undertaking. For the sake of clarity, the strategy should preferably take the form of a written manual, and be formulated simply and in all the undertaking's working languages, so that everyone can make it their own. Internal recommendations should describe EU law on competition and the objective pursued, explain how this law is applied and the potential costs to the undertaking in the event of non-compliance, be illustrated by a concrete list of practices to be banned and warning signals, and be regularly updated.

Accompanying measures can be taken to ensure that staff adhere to the compliance strategy adopted by the undertaking. Staff may be asked to acknowledge in writing receipt of relevant information concerning compliance with EU law on competition, notably at the time of handover of the rules manual or at the end of a special training session. Employees can be encouraged to attach the utmost importance to the compliance objective by including compliance responsibilities in their job description, or by being reminded that the adoption of a particularly vigilant attitude in this respect is a criterion for staff appraisal. Lastly, disciplinary sanctions may be imposed for breaches of internal compliance rules, provided they comply with national employment legislation.

A clear disclosure mechanism is an essential part of the system. When faced with a questionable situation, staff must be able to determine who to contact and how. This means designating a person, such as a compliance officer, whom employees can contact for advice if they have doubts about the compatibility of certain types of behavior or agreements with EU law on competition. Training in EU competition law is also essential, especially for staff who are particularly at risk, such as sales staff and sales managers in the case of price-fixing agreements between competitors, or those taking part in meetings of professional organizations or sector-specific events.

Finally, the Commission recommends that undertakings equip themselves with audit and control mechanisms that will enable them to effectively prevent and detect anti-competitive behavior within the undertaking. Audit is the preventive aspect of the system, since it consists in checking how the undertaking behaves in relation to competition in tendered markets. Audits, on the other hand, enable the detection of existing anti-competitive behavior. These two mechanisms can be combined.

If, despite the efforts made, an infringement is nevertheless committed, the Commission invites undertakings to do everything in their power to put an end to it as quickly as possible, in order to limit the damage to competition and minimize the risks for the undertaking. Undertakings can also contact the Commission to submit a leniency application , which will grant them immunity from fines, or a reduction of between 20% and 50% of the fine, depending on the rank of their application, or take part in a settlement procedure , which will, where appropriate, provide them with a 10% reduction of the fine incurred.

Commission Notice No 2006/C 298/11 on immunity from fines and reduction of fines in cartel cases, OJEC C 298 of 8 December 2006, 17.

Commission Notice No 2008/C 167/01 on the settlement procedures initiated with a view to adopting decisions pursuant to Articles 7 and 23 of Council Regulation (EC) No 1/2003 in cartel cases, OJ C 167 of 2 July 2008, 1.

Compliance

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Les notions juridiques connexes

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