Chillin'Competition

We are starting off a new section at Chillin’Competition called “Ménage à Trois”.

Readers of this blog know that I have a tendency not to over-criticize the European Commission. This doesn’t however blind me;  anyone familiar with the permanent revolution suffered by EU competition law in recent years will find a common denominator in all major policy reforms in which the Commission has embarked: they were all aimed at working less under the pretext of refocusing  (think about 1/2003; the State aid action plan, the Guidance paper on Art. 102, etc)      🙂

Nicolas and myself have decided to follow the Commission’s lazy wise approach to policy reforms:

We  have realized that we often can’t find the time to timely report to you the most interesting aspects of case-law developments. Also, we tend to give you our personal views on issues, which by definition are subjective and incomplete. So we asked ourselves (i) how can we follow case-law developments more closely and give readers subjective yet balanced opinions?; and (ii) how can we do that by working less? (i.e. what would the Commission do?)

So here’s the plan: each time a relevant development takes place we will contact three people. The idea is for one of them to write a post on the development at issue. Instead of publishing the post right away, we will circulate it among the three experts, who will then discuss it by email (Nico and I may intervene as well). We will then post on the blog the  original post together with the trilateral debate that it may have given rise to.

We welcome applications for experts who wish to be contacted, as well as suggestions for possible topics.  We also want to profit from this new section to bring younger lawyers or academics to the sporlight and to have the minteract with other established heavy weights.

Our first ménage à trois will deal with last week’s Judgment in the Greek Lignite case (concerning the inteface between Arts. 106 and 102 TFUE). Our three inaugural guests will be three good friends of this blog: two of them (Makis Komninos -White&Case- and Marixenia Davilla -Shearman&Sterling- were actually involved in the case (on the winning side) and the third (José Luis Buendía -Garrigues-) is the author of the bible on Article 106 (of which a new edition is on the pipeline).

Is the Office of Fair Trading racing for the prize of the most business-friendly competition authority in Europe?

I know this reads a bit controversial, but many have had the impression that, in recent years, the OFT was on a soft enforcement course, preferring to focus on high-level policy work, than on running – and terminating – cases.

A few days ago, the OFT issued a document entitled “OFT’s guidance as to the appropriate amount of a penalty“.

In this document, the OFT announces – with many caveats though – that firms that have compliance programme can benefit from mitigating circumstances.

Concretely, the OFT may offer a 10% haircut on the anticipated fine.

Here’s the text of the Guidelines:

§2.15 “Mitigating factors include: […] adequate steps having been taken with a view to ensuring compliance with Articles 101 and 102 and the Chapter I and Chapter II prohibitions”

And footnote 26: “The starting position with regard to competition law compliance activities will be neutral but the OFT will consider carefully whether evidence presented of an undertaking’s compliance activities in a particular case merits a discount from the penalty of up to 10 per cent. Thus, the mere existence of compliance activities will not be treated as a mitigating factor. However, in an individual case, evidence of adequate steps having been taken to achieve a clear and unambiguous commitment to competition law compliance throughout the organisation (from the top down) – together with appropriate steps relating to competition law risk identification, risk assessment, risk mitigation and review activities – will likely be treated as a mitigating factor. The business will need to demonstrate that the steps taken were appropriate to the size of the business concerned and its overall level of competition risk. It will also need to present evidence on the steps it took to review its compliance activities, and change them as appropriate, in light of the events that led to the investigation at hand“

I have expressed elsewhere my intuitive concerns about the sophistic argument that agencies should reward compliance programmes with discounts on fines, so as to induce firms to set up such programmes. Here’s what springs to mind:

First, it is somewhat odd to provide financial incentives to promote compliance with the law, or to be more accurate to reward the initiative of trying to comply with the law (in reality, the caught firm did not comply). If we push this logic to its end, agencies should then reward infringing companies if they can prove that they have hired lawyers to obtain regular competition advice.

Second, rewards on compliance programmes could have perverse effects, with firms adopting compliance programmes as a damage limitation mechanism, which limits the cost of punishment if they ever get caught. In other words, the reward on the existence of a compliance programme acts like an insurance policy, which in turns reduces firms risk aversion to antitrust infringements.

Third, a well-designed compliance programme can adversely promote the risk of antitrust infringement, if clever managers understand better how to exploit the loopholes and deficiencies of the antitrust enforcement system. Why reward this?

Finally, compliance programmes have benefits at any rate, and there’s no need for an additional fining stimulus to encourage their adoption. Compliance programmes promote awareness to what constitutes an antitrust infringement within firms, and to how much it costs to commit one. They  thus decrease the probability of antitrust infringement in the first place, and with it the risk of antitrust penalties.  Moreover, with better trained in-house lawyers and business executives, the legal costs of outsourcing of competitive assessments to external lawyers may decrease.

My bottom-line: rather than tinkering with the fining system to foster compliance, let’s just turn to individual sanctions (director disqualification and prison sentences).