Ten years after its initial publication, and following a public consultation at the end of last year, the French Competition Authority (“FCA”) on 24 May 2022 published a largely overhauled version of its framework document on compliance programmes.
In this document, the FCA recalls the virtues it sees in the adoption of such programmes: protection of competition, risk prevention and detection of possible cases of non-compliance.
However, since the adoption by the FCA of a Notice on the settlement procedure and compliance programmes in October 2017, there is no longer any question of reducing financial penalties for undertakings committing to this path. Unsurprisingly, the new framework document therefore does not provide for a reduction in fines or any other form of incentive for undertakings that adopt such a programme.
As is the case for the European Commission, the FCA considers that it is "the duty of economic actors, and in their interest, to take all possible measures to conduct their business in compliance with competition rules". In this respect, "the implementation of an effective compliance programme may play a key role", insofar as it may allow the FCA to detect cases of non-compliance and to consider on that basis, for example, seeking settlement or filing a leniency application in order to try to minimise its impact.
More generally, the FCA considers that an effective programme should have three objectives:
- Firstly, to prevent the risk of infringement;
- Secondly, to provide the means to detect and deal with any infringement identified;
- Thirdly, to provide for regular updates - this last objective being an addition to the version submitted for public consultation.
According to the FCA, such a programme should not be limited to information and awareness-raising actions, but should reflect a strong and proactive commitment of the undertaking, "at all levels of the hierarchy", to maintain a culture of compliance with competition rules, as well as to detect and deal with any cases of non-compliance.
The FCA thus considers that, to be effective, a compliance programme should be "tailor-made" by and for the undertaking, (as the case may be) as part of a more global compliance programme, and be regularly updated. It must be based on a risk-mapping exercise and may use innovative tools, such as algorithms that align compliance measures ("compliance by design").
The compliance programme also has to be based on "five pillars":
- a clear, firm and public commitment by the company’s executive bodies and management, as well as the involvement of all organisational levels, not only the executive management, but also the technical departments (in particular, legal, information systems and digital strategy managers) as well as the sales teams.
- internal contact persons and experts (compliance officers) with the resources, autonomy and independence necessary to carry out their missions.
- information, training and awareness-raising measures detailing the purpose of the program, the meaning and scope of the competition rules, the importance and benefits of complying with them, as well as appropriate internal mechanisms for obtaining advice or alerting counsel in case of any difficulty.
These training and awareness-raising measures must not only be widely disseminated within the company, but they must also be adapted to the different categories of employees according to the nature of their activity and their degree of risk exposure, which presupposes a prior differentiated assessment of the risks.
- control mechanisms (provisions included in internal rules, clauses added in employment contracts, individual certificates) and warning mechanisms (internal contacts, alert desk).
- a mechanism for monitoring and processing requests and alerts, as well as a sanction procedure in the event of a breach of the programme.
Finally, the framework document lists a number of public resources available and recalls the key role that competition lawyers, professional organisations and institutional partners may play in assisting companies of all sizes in that field.