Elements of an Effective Antitrust Compliance Programme

This unit was published in „International Cooperation of Competition Authorities in Europe: from Bilateral Agreements to Transgovernmental Networks” Błachucki, M., ed., (2020).

Over the last 15 to 20 years, compliance in the corporate sector has taken a very dynamic development. Hardly any company, and least all of the large and multinational companies, can manage without an individual compliance policy and company-wide compliance programmes, which is also a sign of good corporate citizenship. The implementation of effective antitrust compliance programmes plays an important role for companies seeking to comply with antitrust rules and regulations. An increasing number of jurisdictions have introduced the possibility to use effective antitrust compliance programmes as a mitigating factor for calculating the fines for antitrust violations. To this end, companies need to know the regulator‘s expectations as to the components of an effective antitrust compliance programme. The following article looks at the decisive elements for such a programme. It refers especially to the new and relatively detailed guidance that has been issued by the Antitrust Division of the U.S. Department of Justice. In 2019, the DOJ gave up its longstanding policy of categorically rejecting any consideration of effective antitrust compliance programmes and announced a landmark policy shift through acknowledging the positive aspects of such programmes. For regulators, in order to promote competition, it is still necessary to cooperate and harmonise their activities to strike the right balance between positive and negative incentives for companies seeking to comply with antitrust rules and regulations. Leniency programmes and antitrust compliance programmes are the cornerstones of preserving the positive impacts of effective competition on social and economic wealth of a society.