Concurrences

Deterring Corruption and Cartels: In Search of a Coherent Approach

The initiative of Mrs. Auriol, Mr. Hjelmeng, and Mrs. Soreide consists of an article on "Deterring corruption and cartels: In search of a coherent approach." This article addresses how the rules intended to protect consumers and taxpayers from economic crime, namely leniency and cartel settlements in competition law, criminal sanctions, and debarment of suppliers from participation in public tenders for bribery, work together. While the economic reasoning behind these rules makes sense when considering each one of them in isolation, their impact is weakened when they are opposing each other. Competition authorities are narrowly mandated to control competition, and they do not seek out corruption. For criminal law investigators’ problems are created if they interfere (because it would undermine the leniency program); conversely, there are problems if they stay away (because that would undermine enforcement of corruption and other economic crimes). We propose to strengthen the regulation of corporate misconduct through better collaboration and integration of the other law enforcement functions and institutions that exist. The first step is to maintain and share a centralized database on firms’ offenses and settlements with antitrust and procurement authorities. The second step is to expand the mandate and competence of competition authorities to search for and react against corruption.

Testimonials

Martin d’Halluin
News Corp (New York)

United States 10 contributions 12218 visits

In its 2019 guidance, the U.S. Department of Justice emphasized that robust compliance programs need to be forward-thinking: "effective antitrust compliance programs not only prevent, detect, and address antitrust violations, they also further remedial efforts and help foster corporate and individual accountability". Concurrences’ idea to reward innovative compliance initiatives globally is also forward-thinking and should be applauded. I am delighted to be part of the Steering Committee and look forward to seeing a lot of creative programs.
Maria Lancri
Squair Avocats (Paris)

France 1 contribution 168 visits

I believe that compliance is another way to advance legal matters in our companies by advocating and preventing risks. Antitrust matters have their place in the compliance world and I hope to help companies develop the appropriate tools to prevent and limit their risks.
Daniel Sokol
USC Gould School of Law (Los Angeles)

United States 10 contributions 3592 visits

Compliance plays an integral role in antitrust/competition law and this initiative recognizes its growing centrality.
Marie-Pascale Heusse
BNP Paribas (Paris)

France 6 contributions 8499 visits

Compliance, as well as time to market, constitutes a major strategic challenge for economic players but also for authorities and institutions. What is the rule without the knowledge of this rule, the understanding of issues and risks at stake ? This is most apt when it comes to behavioral rules. Competition law is now part of companies’ codes of conduct which imply for staffs to act in a responsible and ethical manner. Being aware of competition law rules is therefore much more than a legal requirement. It is part of the corporate culture.

Today Competition Law Compliance Programmes are widespread. However, from the perspective of Heads of competition law / Compliance officers in charge, maintaining such programmes as top priorities is not a walk in the park. To the contrary, it is a real challenge to always keep them up especially when they are themselves in competition with many compliance requirements imposed by legislations, e.g. anti bribery, money laundering.

Concurrences identified this issue and started months ago to propose dedicated events. The Awards Compliance Initiative, that I’d like to commend, will be the high point of exchanges started in February 2019 at Concurrences’ initiative but also, and it has to be stressed, in the framework of a dedicated working group set-up by the French Competition Authority in 2020. More broadly, it will gather international actors, authorities and institutions and allow them to share their views and more practically, their best recipes and tools.
Alexandre Barreto De Souza
Brazilian Administrative Council for Economic Defense (CADE) (Brasilia)

Brazil

You have probably heard that it is much better to be safe than sorry. This maxim, applicable to so many situations, can also be used when we discuss corruption, since the act of anticipating situations prevents they spread through public or private companies. Corruption, besides compromising the money of entities, whether public or private, also puts their reputation at stake. On the other hand, compliance programs may establish an organizational culture that encourages ethical conduct and a commitment to comply with the organization’s internal and external standards. In this way, they promote the fight against corruption and reduce the number of lawsuits and administrative proceedings, as well as the chances of financial losses. Experience shows that an effective compliance program can bring about great results. By adopting such programs, we ensure the maintenance of competition in the market and prevent the emergence of violations and harm caused by the lack of competition. Moreover, if we keep a company from losing value, it certainly creates benefits to the entire supply chain, that is, the company itself, investors, consumers, trading partners, and even authorities, as prevention is always preferable to repression, incurring lower costs to society. In view of this, it is important to recognize initiatives that aim to foster and encourage companies to have robust compliance programs that are capable of mapping risks and minimizing the practice of illegal acts, whether these are related to competition law or other matters.

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Testimonials