Recent developments in Ukrainian competition regulation and enforcement, such as the introduction of the Guidelines on Fining, that set the rules for calculating fines for antitrust violations and mandatory publication of the decisions of the Antimonopoly Committee of Ukraine, make the companies take competition compliance risks much more seriously than ever before. The need to care for an efficient compliance is especially important in view of more sophisticated approaches on the part of the AMCU and significant increase in the amounts of fines. While in the past the fines issued by the AMCU used to look quite trivial compared to EU ones, in January this year the AMCU announced its EUR 3.2 billion record fine on Gazprom for abuse of dominance, which is now the largest individual fine in European history of antitrust enforcement (the largest fine ever levied by the European antitrust authorities was EUR1.1 billion in 2009 against Intel for abuse of dominance in the computer chip market).
All the above trends in Ukrainian competition regulation and enforcement, together with its ongoing approximation to EU standards, encourage Ukrainian business to invest in preventive compliance measures which appear to be more efficient and cheaper than sustaining financial sanctions and reputational losses resulting from infringements of competition law. Competition compliance programs (CCP) help companies to stay out of trouble and identify, assess, mitigate, and tackle competition compliance risks in a timely manner. In this article we would like to discuss "must-have" components and key factors ensuring that CCP is not a formal "paper program" but an effective and operational preventive measure against antitrust violations.
Important compliance considerations to be covered
It is widely recognized by antitrust specialists and agencies that there can be no "one-size-fits-all" methodology for building an efficient competition compliance program, which should be designed to meet the specific antitrust risks faced by the company in question with due account of industry particularities, company size, market structure, applied distribution model and so on. However, there are certain compliance considerations relevant to most companies irrespective of their size or business sector, such as interaction with competitors, information exchange, forbidden pricing and marketing practices in relations with customers/buyers of the company. Given the particular importance of these topics it is worth touching on them before moving to key factors underlying effective competition compliance programs.
Safety measures in contacts with competitors & information exchanges
A competition compliance program should clearly articulate the antitrust risks of communication with competitors, particularly on strategic issues such as pricing, discounts, promotions, bonuses, and any other price components, sales plans, marketing plans, new product launches, etc. The program should also transmit a strict requirement for its staff to record every meeting with participation of a competitor(s) and to preliminarily approve with the legal department the agenda of the meeting or the list of topics to be discussed, and to draw up follow up minutes of the meeting. Furthermore, it is important to include in CCP a clear instruction for employees on how to react in case of receipt of any unsolicited competitively sensitive data, such as emails containing price lists or discounts given by a competitor. Should it be the case, for a competition risk assessment it does not matter whether you received such data directly from your competitor or from another entity like a joint supplier or customer. It is the strategic nature of the information which matters and, in any of the above cases, the fact of its receipt may be regarded by the AMCU as an anti-competitive information exchange aimed at coordinating competitive behavior among market players instead of taking the risks of competition, especially if it was not one-time but repeated provision of this type of data.
Employees need to understand that even if they did not ask for the information, they should report the fact to the legal counsel/department and respond properly, making it clear to the "informer" that company policy prohibits any exchanges of competitively sensitive data, which could be regarded as anticompetitive concerted practice, and asking not to contact the company about any competitor's strategies in future.
Interaction with customers/buyers
Any manufacturer is interested in the effective promotion of its product throughout the entire supply chain right up to the end consumer. However, a number of widespread and fruitful marketing tools may appear to run counter to competition law requirements, especially if applied by dominant undertakings or companies enjoying market power in certain markets or market segments. In this respect a CCP should draw the particular attention of employees to anticompetitive practices in relations with distributors, retailers and other buyers of the company. It should clearly prohibit fixing resale prices or resellers' margins, setting of minimum resale prices, any actions that may qualify as discriminatory treatment of different sales channels or resellers, market allocation, e.g. by territory or by customers. In the meantime, marketing and sales personnel should be aware that they are free to use recommended prices or establish maximum resale prices which are not prohibited if such price maintenance (i) is not accompanied by any pressure such as sanctions, bonuses or other benefits depending on compliance by the reseller with such recommended or minimum prices and (ii) does not lead to further price fixing given other circumstances or the existing market structure.
Key factors underlying effective competition compliance programs
In order to make the CCP work and ensure awareness of competition law requirements and compliance therewith by all employees, understanding of the main antitrust risks and their timely identification and solution, a CCP should include the following key components:
Risk assessments and monitoring
The starting point for all competition compliance programs is defining the areas with the highest potential for violations of competition law. The identified risks and company's respective guidelines on how to deal with them should be clearly communicated to employees at all levels, who need to be aware of what conduct is expected of them and where they can seek for assistance and advice. Furthermore, to ensure the effectiveness of the compliance program the company should conduct regular monitoring of the market and adjust the program according to new competition risks and enforcement trends.
Tone at the top
The involvement of the company's management is a cornerstone of an effective compliance program. The company's managers should be committed to compliance themselves and should communicate their values and vision of corporate compliance to their employees. In particular, so as to set the right compliance tone for all employees they should demonstrate a "zero tolerance" approach to antitrust breaches and apply sanctions to employees for non-compliance and to reward those employees who are pro-active in risk identification, communication of existing or potential competition concerns, and other pro-compliance incentives.
Clear compliance guidelines
The main competition compliance principles should be reflected in one compliance document (code of conduct/guidelines/regulation). Apart from a clear overview of the main competition risks, and "do's and don'ts" in communication with competitors, suppliers and customers, participation in trade associations, competitive intelligence, the document should also establish the procedure for internal reporting about the identified competition law violations or concerns, system of rewards and sanctions, procedure of risk assessment and minimization.
Since in practice, besides competition compliance, companies widely use similar programs for anti-bribery, anti-fraud and anti-corruption purposes, a competition program should ideally be integrated into a single compliance program covering all the above risky areas. Such unification will make it easier for employees to follow the compliance requirements and help management to better supervise and control their execution.
Training for employees
Competition compliance train ing sessions and seminars for em ployees should become an unalien able part of effective compliance They should be held at least a yea to keep employees abreast of th latest competition law develop ments and enforcement practice.
Employees will better remem ber information obtained during in person trainings and Q&A seminar: than via self-study of complianc rules. Q&A seminars can be an ef fective tool for both employees an the company's management as they allow employees to ask question about particular situations that they face at work and can help manage ment to detect potentially high-ris areas of business.
Internal reporting systems
To enable employees to rais compliance concerns and repor suspected misconduct, the company should build up an effective inter nal reporting system. Depending or the size of a company, managemen structure, and other particularitie various types of reporting may b appropriate. For some companies an informal "open door" approach where compliance concerns can b raised directly with the manage ment, may be the best solution while others may be better place to use a special web page or email which would also provide for du consideration of the right to pri vacy.
In view of the continuous de velopment of competition law and sophistication of enforcemen practices, it is obvious that even th most robust compliance program cannot cover all the potential risk of competition offences and give ar off-the-shelf answer to any question Nevertheless, the above-describee competition compliance tools help to raise antitrust "red flags" anc identify "grey zones" of competition concerns that require particular cau tion on the part of employees. Such simple measures enable companie to steer clear of violations at mini mum expense by preventing them in a timely manner rather than by curing their consequences.