Recent trends in the evaluation of compliance programs for the purposes of application of fines

In calculating the amount of fines the ICA confirms that pre-existing antitrust compliance programs have to play an effective role against the infringements in order to result in a reduction of fines


Last decisions adopted at the beginning of 2020 by the Italian Competition Authority (AGCM or ICA; see cases I820 – Fatturazione mensile con rimodulazione tariffaria and  A514 – Condotte fibra Telecom Italia ) confirm that the ICA pays utmost attention on the application of the criteria laid down in its 2018 Guidelines on antitrust compliance in order grant a reduction of fines in case of antitrust infringements.

Indeed, in both the above cases (respectively dealing with restrictive agreements and abuse of dominance) during the proceeding the parties involved were seeking a reduction of fines for a set of reasons, including for having implemented a specific antitrust compliance programs  embracing a  risk assessment phase, the setting of rules of conduct, internal procedures and training activities also involving the formal adoption of a specific Code of Conduct.

Despite the above, the ICA held that such pre-existing programs did not play and effective role against antitrust infringements as resulting by the evidence gathered during the proceedings therefore confirming that the compliance programs, even though adopted before the initiation of the proceeding were not suitable to attain their intended purpose to make the values of competition an integral part of the company’s culture and policy. However, in light of the changes made by the companies involved following the opening of the proceedings, the ICA considered appropriate to apply a 5% reduction of the overall fine.

The above decisions confirm the crucial role played by effective compliance programs which need to be tailored in order to reflect specific company’s activities and detect most sensitive areas which may be affected by potential antitrust infringements.

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