On October 31, 2014 the Italian Antitrust Authority (“Authority”) published its Guidelines on the criteria to be followed in order to quantify the administrative fines in cases of serious violation of national or EU regulations governing anti-competitive agreements and abuse of a dominant position. The adoption of the guidelines is likely to represent a relevant turn point of the competition law enforcement in Italy. As a matter of fact the Authority adopts the long time invoked – by the doctrine and practitioners – “stick & carrot” approach as to enforcement of competition law principles. On the one side the Guidelines indicates the Authority’s intention to heavily sanction the most serious breaches of competition law provisions, on the other side the Authority opens the door to a system whereby the most virtuous companies which invest to create a culture of compliance and to prevent the violations of competition law can be rewarded. More in particular the Guidelines list the adoption and enforcement of a specific and adequate compliance program in line with the best European and national practices as one of the mitigating circumstance to be taken into account to decrease the starting amount of the fine (up to a maximum of 15%). As an example of the elements which may provide evidence of such an effective and tangible commitment the Guidelines mention:
- The full involvement of the management,
- the identification of the personnel responsible for the program
- the carrying out of a risk assessment analysis in light of the field of business and the operational context
- the implementation of adequate training programs taking into account the economic dimension of the undertaking
- the establishment of a system of incentives to induce the compliance with the program and of a system to discourage the non compliance with the program,
- the implementation of monitoring and auditing systems.
The approach of the Authority shows its will to open a dialogue with corporations; the rout traced by the Authority may inspire others enforcement agencies. As a matter of fact at present only few authorities world wide accepted to give credit to companies for their genuine efforts to create awareness as to the competition law principles. It is now for the companies to take the chance offered by the Authority and for the latter to show in its decisional practice how the compliance reward system established by the Guidelines will be implemented. A monitoring of the future practice of the Authority will tell us more as to the scope of this “Copernican” evolution in the competition compliance world. For more information about how antitrust authorities treat the existence of a competition compliance program, click here for an article regarding the United States and Canada and here for an international overview.