Considering Compliance Programme In Administrative Proceedings
The Office for the Protection of Competition (hereinafter referred to as "the Office"), as the competent authority for the supervision of competition in the Czech Republic, recognizes its irreplaceable role in enforcing competition rules. Although it is often perceived solely as a sanctioning body, the Office also plays a vital role in fostering the domestic competition environment and thus helping to prevent any infringements of competition law. The Office aims to enable undertakings to actively prevent anti-competitive behaviour themselves.; in other words, the Office intends for compliance programmes to be implemented not only in the course of ongoing proceedings before the Office, but earlier, as a preventive measure.
Given that it may be challenging for undertakings to establish an effective and fully functioning compliance programme, the Office has adopted a Notice on Compliance Programmes. The Notice provides basic information on the conditions subject to which the Office shall consider undertakings' efforts to implement or strengthen internal compliance rules aimed at preventing competition infringements within the framework of the undertaking's operations as a mitigating circumstance when imposing fines.
Consideration of the compliance programme as a mitigating circumstance in administrative proceedings is subject to the cumulative fulfilment of the following conditions:
a) the efficiency of the enhanced or newly introduced compliance programme in relation to the size and market power of the undertaking, and the type of market in which it operates,
b) successful application of the leniency programme and/or settlement procedure in the given administrative proceedings before the Office and, at the same time, that
c) in case of an already established compliance programme, no anti-competitive conduct was committed with the awareness of the statutory bodies or senior management of the undertaking concerned.
The introduction of the new effective compliance programme (no later than before the first-instance decision is issued) may be considered by the Office as a mitigating circumstance when setting the amount of the fine, reducing the amount of the fine by up to 5%.
Compliance programmes adopted and implemented prior to the initiation of the Office's investigation, which have proven to be not entirely effective but which can be assessed as sufficient, may be considered as a mitigating circumstance and reduce the amount of the fine up to 10%, provided that the undertaking modifies the compliance programme accordingly and begins to implement it after the initiation of the administrative proceedings.
How does the Office assess the effectiveness of compliance programmes?
The Office focuses on:
1. the form of the compliance programme, its content and scope, i.e.
- actual implementation and compliance;
- pro-competitive competition culture;
- explanation of competition law concepts, possible sanctions for anti-competitive conduct, how to proceed during an on-site inspection conducted by the Office;
- involvement of all employees of the undertaking, including management as well as regular employees;
- internal and external statements by undertakings on the need to comply with competition law;
- regular monitoring and auditing the functioning of the compliance programme;
2. compliance measures
- assessment of risks connected to infringements of competition law – ad hoc with regard to the particular undertaking;
- regular and efficient training for all employees – for example, employees may be instructed on issues that can be discussed with other undertakings and, conversely, topics that are not allowed to be discussed;
- supervision of adhering to the compliance program (compliance officer) and disciplinary system – for example, an internal reporting system can be established.