Best Practices in Competition Compliance Programme Management

@ComplianceWeek | #CW2017

@ComplianceWeek | #CWE2017

Speaker Panel

Lars KjølbyePartnerLatham & Watkins

Jean-Baptiste SiproudhisGroup Head of ComplianceAtos

Session Moderator: Tonnis PoppemaVP, Advisory ServicesConvercent

Annemarie Ter HeegdeEuropean Commission

Convercent © 2017. All Rights Reserved.

Convercent

November 13, 2017Tonnis. J. PoppemaVP Global Advisory Services

Convercent © 2017. All Rights Reserved.

Convercent © 2017. All Rights Reserved.

A holistic compliance approach is demanded whereby all compliance subject matter is managed similarly

Competition law complianceAnticorruption complianceTrade compliance (Export Sanctions & Boycotts)Sustainability reporting

CourtofPublicOpinion Alldemandpro-activecompliance& engagement:“whathaveyoudonetoRegulators preventit?”

A Transformation in Ethics and Compliance

Convercent © 2017. All Rights Reserved.

A Transformation in Ethics and Compliance

Digital age – data is everywhere and is being shared constantly: risk of exposure is enormousDemographic developments: ‘Millennials’ have different demands and values and do not accept non-compliance

This shift in interest from the public and regulators demand pro-active measures:

§ Training – face to face and e-learning § Solid reporting mechanisms – objective and confidential§ Good governance: tone at the top, middle & bottom§ Continuing risk assessments

Convercent © 2017. All Rights Reserved.

Compliance, Ethics & Values Matter……Today more than ever!

Annemarie TER HEEGDE DG COMPCOMPLIANCE WEEK EUROPE

Best Practices in Competition Compliance Programme Management13 November 2017

Antitrust Enforcement by the European Commission

•Anticompetitive agreements/coordinationbetween companies (Article 101 TFEU)

•Unilateral abuses of dominant position by companies (Article 102 TFEU)

•Distortive State measures privileging public undertakings (Article 106 TFEU)

Antitrust/cartel enforcement

•On average 10-15 cases reach the College each year. Decisions often impose heavy fines (EUR 9 352 million 2013-2017)

•Since 2004 decentralized enforcement with Member States – DG COMP focusing on cases with cross border dimension

Procedure

• Ex officio (incl. whistleblowers)• Complaints• Leniency (cartels only)

Detection of cases

• Sector inquiries• Requests for information• Power to take statements• Inspections ("dawn raids")• Investigations by national competition

authorities

Investigatory powers

•Digital Single Market: removing barriers in the digital economy

•Energy Union: better integration of gas and electricity markets

Contributing to the EU single market

•Trucks•German car sector

Fight against cartels

•Pharmaceuticals (Cephalon, Aspen)

Keeping prices for consumers low

Ten highest cartel fines per undertaking (since 1969)

Latham & Watkins operates worldwide as a limited liability partnership organized under the laws of the State of Delaware (USA) with affiliated limited liability partnerships conducting the practice in the United Kingdom, France, Italy and Singapore and as affiliated partnerships conducting the practice in Hong Kong and Japan. The Law Office of Salman M. Al-Sudairi is Latham & Watkins’ associated office in the Kingdom of Saudi Arabia. © Copyright 2015 Latham & Watkins. All Rights Reserved.

Best Practices in Competition Compliance

Compliance Week Europe

Amsterdam, 13 November 2017Lars Kjølbye

The Virtuous Compliance Loop

13

Top LevelCommitment

Training program

Separate investigation

team for any imposed compliance obligation

Risk assessment

Culture

Set of principles to minimize

risks

KnowledgeSet up “compliance unit”

for effectiveness andcontinuityAction

Key Trends: Going Digital

The economy is going digital and so is competition law enforcement

• Smartphone texts messaging and private emails accounts used for business purposes targeted in dawn raids

• Pricing algorithms as collusion tools• Use of digital tools to control where products are sold• Focus on B2C relationships as companies cut out the

middleman and engage in D2C selling

Key Trends: Information Exchange

Exchange of commercially sensitive information as core focus of cartel enforcement

• Price signaling• Commercial strategies

Beware of direct communications between commercial teams falling outside the scope of legitimate business cooperations

Key Trends: Verticals Are Back

EU Digital Single Market project has pushed vertical restraints enforcement back on the agenda

• Resale price maintenance and use of digital tools to enforce recommended resale prices

• Geoblocking and territorial restrictions• Restrictions on online selling

Thank You for Your Attention

Lars KjølbyeLatham & Watkins LLP

Boulevard du Regent 43-441000 Brussels

lars.kjolbye@lw.com

© Atos – Confidential

Best Practices in Competition Compliance

Jean-Baptiste Siproudhis, Head of Compliance, Atos

Compliance Week EuropeAmsterdam - November 13, 2017

| 13/11/17| LCM Department | © Atos – Confidential19

Tone from the topChallenge#1:Integratecompetitioninglobalcomplianceprograms

§ Corruptionistheleadingtopicimposedbyregulations&norms(ISO),NGO’s,mediacoverage

§ Unlikecorruption,breachesofcompetitionarenoteasytograsp=Competitionisoftenunderestimatedortreatedseparately

§ Similarities:claimsfromcompetitors,whistleblowers,leniencyprograms…§ “Falsefriends”:whistleblowerprotection,investigationsmanagement

Best Practices in Competition Compliance

| 13/11/17| LCM Department | © Atos – Confidential20

Tone from the top

Best Practices in Competition Compliance

Legal requirements Bribery (Sapin II, FCPA, UKBA)

Competition (UE & some national Guidelines)

Governance Tone from the Top Tone from the top

Awareness Managers & most exposed employees Managers & most exposed employees

Tools

Code of Conduct, part of internal rules

Risk assessment

Disciplinary procedure

Code of conduct

Risk assessment

Disciplinary Procedure

Reviewing infringements, follow up

Due Diligence Customer, suppliers, intermediaries Mostly in M&A

Control Auditing, checks Monitoring, auditing

Reporting Whistleblowing system Whistleblowing system

| 13/11/17| LCM Department | © Atos – Confidential21

Tone from the top

#1:Draftcompetitionriskmapping§ Relevantmarkets,turnovers,marketshares,competitors:usemergerfilings,risks,strategy

#2:Turncompetitionrulesintobasicreflexes§ Shorttrainings,focusingonindividualsresponsibility§ Usecases,“neverletagoodcrisisgowaste”§ Turnrulesintosimplequestions:Whyareweinvolvedinthatdeal?Whyjointhisconsortium?

§ RedflagsVSdo’sanddon’t

#3:Involvemanagement§ Managersarethefirsttargets:responsibleforcompliance§ Competitionrulesembeddedintocompanystrategy

Best Practices in Competition Compliance

| 13/11/17| LCM Department | © Atos – Confidential22

Tone from the top

Best Practices in Competition Compliance

DISCUSSION

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