Publication By The French Competition Authority Of A New Framework Document On Competition Compliance Programs

• Published date: 31 May 2022
• Subject Matter: orporate/Commercial Law, Anti-trust/Competition Law, Compliance, Corporate and Company Law, Antitrust, EU Competition
• Law Firm: Mayer Brown
• Author: Ms Nathalie Jalabert-Doury and Jean-Maxime Blutel

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...