Setting up and managing a compliance program in antitrust and anti-corruption
Speakers of the session:
Raimondo Rinaldi (PresidentAIGI, General counsel Esso italiana);
Fabio Bortolotti (Buffa Bortolotti & Mathis, Torino; President IDI);
Andrea Montanari (General Counsel FATA, Sezione AIGI Piemonte-Valle d’Aosta);
Annarita Sofia (Confindustria, Rome);
Marco Hero (PF&P Rechtsanwälte, Munich, IDI franchising country expert for Germany);
Andreas Mundanjohl (formerVerlagsgruppe Weltbild, Inhouse Counsel IT, Augsburg);
Didier Ferrier (Professor of Law, University of Montpellier; Vice-President IDI);
Niccolò Della Bianca (in-house counsel Enel S.p.A., Rome);
Diego Saluzzo (Grande Stevens, Torino; former general counsel IVECO);
Massimo Restino (Alenia Aermacchi S.p.A., Turin).
Aim of the IDI morning session on June 13th was to provide the audience with a general overview of compliance programmes and a deeper analysis of their application in antitrust and anti-corruption matters.
Although the setting up of a compliance programme is becoming more and more important, in order to comply with several applicable legislations, there is often a debate within companies, whether this kind of activities can be considered as an opportunity or a cost. It should be reminded that since companies anyway have to respect laws in their business activities, the setting up of an effective corporate governance system together with a compliance programme are extremely useful and effective in mitigating risks of laws violation and protect, as a consequence, the whole company business.
Compliance programmes have to be adapted not only to the specific legal system but also to the characteristics of the company involved. Having in mind that, programmes can be drafted according to six main principles:
– Risk identification: the compliance programme only works if possible risks have been clearly identified, in relation to the business and the size of the company, as well as the characteristics of the market, in which the company is operating;
– Risk assessment: once a risk has been identified (as for instance the possible corruption of a public official), one should assess if, how and in which company areas such risk could occur at a high, medium or low level;
– Mitigation factors: in order to manage all identified risks, the company should evaluate possible measure, as for instance a training programme or new organisational procedures, that could contribute to reduce the risk;
– Monitoring: the application of the programme should be regularly verified;
– Updating: compliance programmes are dynamic instruments, they can be effective only if they are updated according to possible law revisions or also as a consequence of a law violation by the company;
– Deterrence: compliance programmes do not only have to be endorsed by the top management and spread out through all companies employees, but they also have to provide for possible disciplinary actions to the employees, who violated them.
The abovementioned principles can be followed in each business environment. In franchising systems, compliance programmes can for instance be established in order to manage risks of violation of environmental laws, antitrust rules, anti-corruption rules. The implementation of a compliance systems may have a wider importance and may also be better accepted by SMEs , which tend to consider this kind of activities as pure costs, if its main aim is to avoid the violation of criminal laws. An example related to data protection legislation in countries like Germany was quoted: the provision of severe consequences in case of violations (up to 5% of the company yearly world turnover and, under certain circumstances, even imprisonment) can easily demonstrate the relevance of a compliance programme. Such programme can also be adapted to the size of the company: a dedicate compliance officer, which can be found in a more structured company, could for instance be substituted by a compliance committee, made of company manager, in a SMEs in order to limit costs.
Compliance programmes play also a very important role in antitrust matters. Following the above mentioned principles, the programme should identify all possible risks and take proper measures, in order to reduce such risks. Especially in distribution relations, it will be very useful to provide guidelines to employees (such guidelines could be drafted in several languages, in order to be able to reach all markets involved, and distributed both to the supplier’s and the distributor’s employees and management), to possibly appoint a compliance officer and to structure a training programme, aiming to reduce the risk of violation of antitrust rules. Main area of risks could be seen in pricing policies, restriction of sales and post-contractual non-competition duties.
The definition of an antitrust compliance programme brings an interesting challenge: finding the right balance between the need to comply with antitrust rules and the need of the company to be still commercially efficient.
Last but not least, compliance programme are extremely relevant in anti-corruption issues. Corruption, which may have different forms (private, public, active and passive), undermines both competition and democratic policies and should therefore be avoided. Compliance programmes for employees as well intermediaries can be an effective tool to mitigate corruption risks. Particularly dangerous for companies can be cases of vicarious liability linked to the bribery activities done by intermediaries, such as agents, distributors or consultants in critical countries, which have a high corruption index. In order to avoid possible risks, companies may perform a preliminary analysis before the appointment of an intermediary and collect information such as corporate and financial information, organisation structure and litigation history, in order to exclude possible cases of bribes in the past. The intermediary can also be asked to sign a formal contract, identifying clearly its future tasks, and providing for a specific anti-bribery commitment.
Valentina Maglio, Luigi Lavazza SpA, IDI Member