French Competition Authority launches a public consultation on its new compliance programme framework document
The French Competition Authority recently launched a public consultation on its new Framework Document on competition compliance programmes. The FCA recalls that a compliance programme will help companies prevent the risk of anticompetitive conducts but also detect possible infringements as early as possible, and effectively react. It then provides some concrete guidance on key elements of a robust compliance programme.
The French Competition Authority (the "FCA") has been recognised as one of the most active competition authorities across the globe in terms of enforcement. However, as its now former President stated, "we also wanted to develop a strong educational approach for businesses […]. The compliance approach is now taking shape with a new framework document, which is being put out for consultation today." (Isabelle de Silva, Retour sur un mandat : la présidence de l'Autorité de la concurrence, 2016-2021, 11 October 2021, p.11).
In 2012, the FCA had adopted, as part of its settlement procedure, a policy that allowed a fine reduction for companies that committed to introduce an antitrust compliance programme, or to significantly improve such a programme.
The 2012 framework document was repealed in 2017, when the new settlement procedure was introduced. The new procedure deemed compliance programmes to be part of the normal management of a business and consequently no longer took them into account for a potential fine reduction, in line with the European Commission's approach.
However, it has emerged from the work conducted by a group of experts in 2020-2021 that market players perceived a need for a reference text on competition compliance programmes.
It is in this context that the FCA is issuing its new Framework Document on competition compliance and requesting market participants to provide feedback by 10 December 2021.
The FCA stresses, throughout the new Framework Document, that compliance programmes should be designed as a means to show the company's commitment to (i) prevent the risk of anticompetitive conduct and (ii) detect possible competition law infringements, with a view to being able to benefit, where applicable, from the leniency programmes.
According to the FCA, strong support of the top management is key for a successful competition compliance programme, as well as having compliance officers with sufficient authority and resources internally to ensure that the compliance programme is effectively implemented, and having access to senior management in order to act promptly in the event that problematic behaviours are brought to their attention.
Another key element of a robust compliance programme is informing and educating all employees across the company on competition issues and the programme itself, through training that is tailored to the audience.
Finally, the FCA also emphasises the need for companies to put in place mechanisms to monitor compliance with the programme across the company (through internal rules, or provisions in employment contracts for instance) and to ensure easy and prompt reporting of potential anticompetitive practices, which should be recorded internally.
This is very much in line with the (much more detailed) guidance issued by the French anticorruption agency, and thus suggests that companies should adopt a holistic approach to compliance, which, in all its aspects and areas of law, is increasingly present in the corporate world.
In light of the guidance available, companies are left with little excuse for not having a robust compliance programme in place…