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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 ,
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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
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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
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