Preventing risks by encouraging positive or active approaches

Preventing risks by encouraging positive or active approaches

The culture of compliance is developing within companies and is now increasingly part of an overarching approach, with compliance with competition law being an essential element of this process. Faced with significant financial and reputational risks, adopting a compliance approach is a strategic challenge for companies. The Autorité would like to support companies as much as possible in this process. As such, it makes various general and technical educational tools available. Overview of the Autorité’s work to promote compliance.

The Autorité’s task of regulating competition is not limited to “competition law enforcement”. In addition to the necessary enforcement against anticompetitive behaviour, it also plays an important educational role, with a view to prevention. Raising awareness of the rules, clarifying the procedural framework, deciphering case law, engaging in dialogue with the actors… Through a wide range of different activities, the Autorité encourages and enlightens the economic actors in order to help them commit to a strategy to prevent and manage competition-related risks.

The Autorité regularly publishes opinions and recommendations on general competition issues or on more sector-specific issues. It issues guidelines, i.e. framework documents, explaining various aspects of its procedures, competition policy or decision-making practice (merger control, leniency procedures or settlement procedures, sanctions, etc.). It also publishes thematic studies (“Les Essentiels” collection) and guides, and makes digital tools available (videos, infographics, online section, etc.). The Autorité has also decided to introduce educational inset boxes in its press releases, which reiterate and explain the rules involved in the case and draw lessons for non-specialists.

Through a wide range of different activities, the Autorité encourages and enlightens the economic actors in order to help them commit to a strategy to prevent and manage competition-related risks.

An online section dedicated to compliance

In order to help the economic actors who wish to take control of their competition-related future and control competitive risks by implementing a compliance programme, the Autorité has launched a dedicated section on its website explaining the rules and risks involved. Tools are made available (list of essential elements for building an effective programme, etc.) as well as resources produced by the Autorité (general resources or specifically adapted to certain operators) and the various statements made by the President and Vice-Presidents on the subject. The aim of this dedicated section is to explain how making the choice to be in compliance with competition rules can be a winning investment.

Preventing risks by encouraging positive or active approaches
Study on professional bodies and the accompanying vade-mecum is available on our website (bilingual version FR/EN)

A study to provide information to professional bodies

The way of working of professional bodies may be conducive to anticompetitive practices, such as price fixing, exchange of information or concerted actions to hinder the development of competition. Various sanction decisions have shown that trade unions and professional bodies can be catalysts or facilitators of prohibited practices, whether they support or instigate them. This risk is structural to the extent that these bodies bring together the actors in a market, who are in competition with each other.

Under the impetus of the new European framework, the “antitrust risk” is now compounded for professional bodies if they engage in anticompetitive practices. Up until now in France, the amount of the fine imposed on a professional body was capped at €3 million. Since the adoption of the ECN+ Directive, the maximum fine has been raised to 10% of the total turnover of the members of the professional body. As a result, professional bodies, as well as their member companies, are exposed to substantial fines in the event of any infringement.

The Autorité decided to anticipate this evolution by commissioning a study on professional bodies. This study examines how professional bodies can promote better enforcement of competition law among their members, and deciphers the competitive risks associated with the way these bodies work. As such, the document provides an analysis grid of authorised and prohibited behaviours: in a word, a “turnkey” tool to encourage compliance. The study is accompanied by a vade-mecum listing the “good” and “bad” practices, which can easily be distributed to the members of the bodies. More than ever, professional bodies are invited to become actors at the service of compliance, by informing their members about competition risk through their training and informational tasks.

Preventing risks by encouraging positive or active approaches

Fabienne Siredey-Garnier

Vice-President of the Autorité de la concurrence

In your opinion, does the work of the Autorité de la concurrence have an effect on the implementation of compliance programmes?

I do believe that the Autorité’s proactive policy in this area is having a positive impact on the awareness of some companies that they need to integrate the competitive compliance dimension into their overall prevention strategy or further develop existing programmes to achieve more effectiveness. In effect, the Autorité is committed to developing a range of tools (guidelines, framework documents, studies) to explain not only the rules but also the stakes, which are often substantial in financial and reputational terms. This last aspect is far from negligible in a society that places ever more importance on responsible and ethical behaviour on the part of companies.

The Autorité’s communication policy is also essential and plays an important role in achieving the objective of education, in particular with the dedicated section that has been set up, the production of guides, educational videos and infographics, and the systematic inclusion of a reminder of the rules in press releases, as well as many other tools. As you can see, the Autorité is already involved to a significant extent and intends to carry on in this way.

Is compliance with competition rules only for large companies?

The Autorité cannot emphasise enough that competition rules apply to all companies, regardless of their size, from SMEs to multinationals, but also to professional bodies, which have an important role to play in terms of compliance. When called on to account for their infringements at our hearings, many companies state that they were simply unaware of the rules.

We should acknowledge the fact that not all companies have the same resources to allocate to compliance. Putting a compliance program in place within a company requires an investment, but we want to make it clear that in the end it is always a winning calculation, compared to the financial and reputational risks entailed.

Preventing risks by encouraging positive or active approaches
Guide intended for SMEs featuring all the competition rules (bilingual version FR/EN)

A special “SME” guide

The Autorité wishes to make competition law accessible to all companies, in particular SMEs, which do not always have a legal service or the internal resources to make their employees aware of this issue. All companies, regardless of their size, are subject to the same rules of competition. In the event of an infringement, SMEs, like any other company, are therefore exposed to financial penalties, which can be high. It is therefore essential that they know and understand the rules to which they are subject.

The Autorité has therefore made a guide available, entirely dedicated to them, in the form of an online section.

The objective is threefold:

  • explain the competition rules in order to raise awareness among SMEs to prevent infringements, in particular through negligence or ignorance of the rules of the game;
  • help them take action when they have committed an infringement;
  • provide guidance to them when they are victims of anticompetitive practices.

Through examples taken from the daily lives of companies, this guide explains in a concrete and instructive manner what constitutes cartel practices – whether between competitors or between a supplier and its distributors – and what abuse of a dominant position means.

It demarcates the red lines that cannot be crossed and the “poor excuses” that companies cannot hide behind to avoid taking responsibility. Finally, it explains in an accessible way the various procedures that can be applied when an SME has committed an infringement.

The guide also provides SMEs with the keys to help them identify situations in which they may unwittingly find themselves as victims of anticompetitive practices and, where appropriate, be in a position to lodge a complaint by mobilising competition law to their benefit. For example, libellous practices, denial of access to critical infrastructure or predatory pricing may constitute forms of abuse of a dominant position that may hinder the business development of an SME, or marginalise it. An SME may also be denied access to a new market due to a collective boycott by established competitors. It may also be the victim of a cartel on the intermediate products it purchases, which increases its production cost and undermines its competitiveness.

Preventing risks by encouraging positive or active approaches
Online SME section, available from the website on the Autorité de la concurrence

This guide has been drawn up on the basis of the Autorité’s work (analysis of infringements committed by sanctioned SMEs) and consultation with the representative professional bodies (MEDEF, CGPME). The new online section is made up of downloadable practical sheets and educational videos. It is also available on request in printed format.