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Enforcers’ Consideration of Compliance Programs in Europe: Are 2011 Initiatives Raising Their Profile or Reducing It to the Lowest Common Denominator?

Nathalie Jalabert-Doury and Gillian Sproul, CPI Antitrust Chronicle, February 2012.

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In Europe, compliance programs have been implemented by companies for many years. However, few competition authorities had clarified how they viewed these compliance initiatives, nor the impact of having (or not having) compliance programs on enforcement decisions. It took a long time for the European Commission to address the issue in any of its reports or notices. Then, in 2011, three competition authorities produced new guidance documents, outlining their support for compliance programs: the U.K. Office of Fair Trading (“OFT), the French Competition Authority (“FCA”), and the European Commission itself. Are these documents good news for businesses? The documents do show that competition authorities will now at least recognize compliance programs in Europe. However, behind the supportive tone, and the provision of more detailed guidance, the new guidelines in the United Kingdom and France only go as far as maintaining existing compliance reductions with reinforced conditions. Furthermore, the main emphasis of the European Commission’s guidance appears to be on its commitment not to consider compliance programs as an aggravating circumstance.

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