Enforcers’ Consideration of Compliance Programs in Europe: A Long and Winding—but Increasingly Interesting—Road

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Nathalie Jalabert-Doury, David Harrison, Jens Peter Schmidt, Jun 30, 2015

It is, by now, established practice for companies throughout Europe to have in place a range of compliance programs designed to ensure that, so far as is possible, the company and its employees conduct their activities lawfully. In 2011, the U.K., French, and EU competition authorities all published guidance on how businesses should approach competition law compliance. Many ideas on what an effective compliance regime should entail were common to all three texts, but there was a marked difference in the extent to which—if any—each regulator might be prepared to take these efforts into consideration in enforcement decisions against offenders.

The European Commission’s stance on the issue was clear: Rigorous competition law compliance policies should form part of the normal order, and accordingly it would afford offenders no reward whatsoever for merely having such measures in place. By contrast, the U.K. and French competition authorities adopted a more flexible approach, recognizing that, in some instances, genuine attempts at effective compliance should be rewarded by way of reduced penalties.

This article discusses how various EU Member States have attempted to embed compliance principles within their corporate culture by treating less severely those who have made or commit to make an observable effort to comply with applicabl…

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