Click here to download the Competition compliance 2018 report, published by Getting the Deal Through.

Jurisdictions covered

The following 19 jurisdictions are covered in this report:

Australia; Brazil; China; France; Germany; Greece; India; Ireland; Italy; Japan; Korea; Malaysia; Russia; Spain; Sweden; Switzerland; Turkey; United Kingdom; United States

Questions

The set of questions relating to the topic of competition compliance and answered by the guide for each jurisdiction covered include:

General

• • What is the general attitude of business and the authorities to competition compliance?
• • Is there a government-approved standard for compliance programmes in your jurisdiction?
• • Is the compliance guidance generally applicable or do best practice and obligations depend on a company’s size and the sector of the economy it operates in?
• • If a company has a competition compliance programme in place, does it have any effect on sanctions?

Implementing a competition compliance programme

• • How does a company demonstrate its commitment to competition compliance?
• • What are the key features of a compliance programme regarding risk identification?
• • What are the key features of a compliance programme regarding risk assessment?
• • What are the key features of a compliance programme regarding risk mitigation?
• • What are the key features of a compliance programme regarding review?

Dealing with competitors

• • What types of arrangements should the company avoid entering into with its competitors?
• • What precautions can be taken to manage competition law risk when the company enters into an arrangement with a competitor?
• • What form must behavior take to constitute cartel?
• • Under what circumstances can cartels be exempted from sanctions?
• • Can the company exchange information with its competitors?

Leniency

• • Is a leniency programme available to companies or individuals who participate in a cartel in your jurisdiction?
• • Can a company apply for leniency for itself and its individual officers and employees?
• • Can a company reserve a place in line before a formal leniency application is ready?
• • If a company blows the whistle on other cartels, can it get any benefit?

Dealing with commercial partners (suppliers and customers)

• • What types of vertical arrangements between the company and its suppliers or customers are subject to competition enforcement?
• • Would the regulatory authority consider the above vertical arrangements per se illegal? If not, how do they analyse and decide on these arrangements?
• • Under what circumstances can vertical arrangements be exempted from sanctions?

How to behave as a market-dominant player

• • Which factors does your jurisdiction apply to determine if the company holds a dominant market position?
• • If the company holds a dominant market position, what forms of behaviour constitute abuse of market dominance?
• • Under what circumstances can abusing market dominance be exempted from sanctions or excluded from enforcement?

Competition compliance in mergers and acquisitions

• • Does the company need to obtain approval from the competition authority for mergers and acquisitions? Is it mandatory or voluntary to obtain approval before completion?
• • How long does it normally take to obtain approval?
• • If the company obtains approval, does it mean the authority has confirmed the terms in the documents will be considered compliant with competition law?
• • What are the consequences for failure to file, delay in filing and incomplete filing? Have there been any recent cases?

Investigation and settlement

• • Under which circumstances would the company and its officers or employees need separate legal representation? Do the authorities require separate legal representation during certain types of investigations?
• • For what types of infringement would the regulatory authority launch a dawn raid? Are there any specific procedural rules for dawn raids?
• • What are the company’s rights and obligations during a dawn raid?
• • Is there any mechanism to settle, or to make commitments to regulators, during an investigation?
• • What weight will the authorities place on companies implementing or amending a compliance programme in settlement negotiations?
• • Are corporate monitorships used in your jurisdiction?
• • Are agreed statements of facts in a settlement with the authorities automatically admissible as evidence in actions for private damages, including class actions or representative claims?
• • Can the company or an individual invoke legal privilege or privilege against self-incrimination in an investigation?
• • What confidentiality protection is afforded to the company or individual involved in competition investigations?
• • What are the penalties for refusing to cooperate with the authorities in an investigation?
• • Is there a duty to notify the regulator of competition infringements?
• • What are the limitation periods for competition infringements?

Miscellaneous

• • Are there any other regulated anticompetitive practices not mentioned above? Provide details.
• • Are there any proposals for competition law reform in your jurisdiction? If yes, what effects will it have on the company’s compliance?