ANALİZ |
|||
56 |
kets where a dominant player exists, through, for example, exclusive dealing, predatory pricing or excessive pricing, this powerful player finds solid ground for assuring its dominant power. These practices are independently driven( unilateral), and are employed by dominant companies as leverage under the basic instinct of the capitalist system: being the only player in a market. Based on my ethics scale, the abuse of dominance can be seen as less provoking than cartels, although this is not to undermine its potential to affect the market as much as cartels do. In the last decade, the deterrence mechanism has geared up, with tools that are designed to bring violations to light more easily. Sanctions have a new direction with the inclusion of leniency programs, providing the opportunity for companies and individuals to disclose a hidden cartel set-up in exchange for immunity from fines. Alternative dispute resolution is also becoming more popular as a way to minimize the cost of lengthy court procedures. Parallel to those developments, especially in the EU, evidence-gathering powers of the competition authorities have been strengthened with the introduction of forensic IT improvements. In this complex scheme of competition law violations and the related consequences, it is on the shoulders of the managers to set the corporate standards for competition law compliance.
COMPETITION COMPLIANCE PROGRAMS Just as preventing mobbing, racism, sexism and violation of unauthorized access to data are legal responsibilities of companies, and just as doing business transparently with corporate governance, safeguarding anti-corruption and anti-bribery are ethical-legal responsibilities, compliance with competition rules is a fundamental legal responsibility. It is just as important as compliance with tax law or employment law. In my opinion, this setup is one hundred percent accurate. Nevertheless it lacks depth. Compliance with competition rules is usually defined as a purely legal responsibility. However,
|
there is a difference between complying with laws and being compliant: that is, complying with the letter and the spirit of the law. In order to be compliant, companies should be expected to create an added value beyond just coping with legal obligations. A competition compliance program is an audit system designed for either sustaining a company’ s ongoing compliance with competition rules, or detecting non-compliant practices and remedying them. These are highly useful programs for companies. Managers must spare time, money and manpower to implement effective competition compliance programs. An anticompetitive behavior may arise with a‘ very smart’ business decision and may surface with even a single e- mail or handwritten note. Therefore, forming a strong competition culture in companies is indispensable as employees’ behavior is not always under the control of liable managers, just as the anticompetitive behavior of a manager is not under the control of the shareholders. Competition compliance programs are a must in order to create a control mechanism in between those players. In substance, the main reason for developing competition compliance programs must be the implementation of a strong and sustainable corporate competition culture. The manager who takes this issue as periodical window cleaning, tick the box matter or‘ Region wants it so,’ is destined to lose the game in competition law.
APPRECIATION OF COMPLIANCE EFFORTS It is a common syndrome among managers to develop a very dangerous selfconfidence by seeing their staff attending competition law trainings every six months, as dictated by corporate rules. This practice should not be considered as a compliance program. Memorizing competition law requirements and deciphering the rationale behind it-- which is not rocket science, though-- does not guarantee a safe harbor. Business practices that carry the potential to lead to an infringement are
|
sometimes considered as the conventional way business is done, just because the corporate learning established such a routine. It may even be the case that a company becomes fully aware of the illegality of a business conduct when it leads to a proceeding. However, there is no excuse for some other conduct, implementation of which requires a certain level of consciousness of their illegality. This is exactly where competition law intersects with ethics. When this happens in the existence of a compliance program, it is up to a company’ s general ethics and compliance policy to detect whether this is a purely managerial initiative or a corporate mistake. Recently, companies have become increasingly demanding in their efforts to apply compliance programs. Business circles are discussing whether the implementation of a compliance program should be considered as a means to obtain a discount from competition law sanctions. The agencies are reluctant to favor the sole existence of a compliance program as a discount from fines. Yet, this approach does not impede the authorities from differentiating between the compliance levels of the companies when deciding on fines.
Finally I observe that competition authorities are becoming more and more aware of the necessity in finding a balance in the division of criminal liability between corporations and their managers. However, one should not expect the competition authorities to rate the effectiveness of a compliance program. The authorities will just focus on the facts, and it will not be difficult for them to detect how effectively a company implemented its compliance program. An effective compliance policy, nonetheless, is the key element to safeguard the fair balance between the expectations of the shareholders and the duties of the managers. 4
1 https:// papers. ssrn. com / sol3 / papers. cfm? abstract _ id = 1535131
|