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UROD published a new bulletin to help understand the
guidelines announced by the competition agency, that intends to
encourage economic agents to develop internal mechanisms to prevent
conducts against competition.
The Chilean competition Authority, Fiscalía Nacional
Económica (FNE) published new Guidelines on Competition Law
Compliance Programs.
In its Guidelines, the FNE familiarizes and presents the topic;
introduces what a competition compliance program is; lists and
explains the conditions for an effective compliance program;
specifies the elements and components that may be included in it;
highlights the benefits of a well-designed, credible and effective
compliance program; and indicates who should implement a program of
this kind.
Conditions for an effective compliance program
According to the FNE, the four conditions that ought to be
concurrently met for a compliance program to be effective are:
Real commitment to comply with competition law (this commitment
is demonstrated through the actions of each agent, requiring that
both internal and external policies be consistent with the
legislation and the intention to comply);
Identification of current and potential risks facing the
company (the FNE recommends a detailed study of the risks to which
the operator is exposed, hiring experts in the area of competition
and regulation, which benefit from better tools to identify risks
and propose measures to take);
Internal structures, mechanisms and procedures in line with
competition law (for instance, corporate commercial policies and
incentives, compensations and other benefits for workers
–and the business goals associated with these
benefits–, must be compatible with competition law in
general and with the prevention of the risks identified in
particular); and,
The involvement of managers and/or directors in the compliance
program (the compliance program must include the participation of
top executives and directors of the company, which cannot be
confined only to the decision to adopt the program).
Benefits of a well-designed and effective compliance
program
In general terms, the FNE considers that the main benefits are
the prevention of contraventions and detection and damage
control.
In this regard, the FNE considers that even if a violation
exists, the correct implementation of a compliance program provides
three major benefits:
Possible reduction of the fine to be applied in the context of
an antitrust claim to the Chilean Competition Tribunal (the
"TDLC");
The timely use of the benefits of the leniency program (in case
of collusion or cartel); and
The possibility of reaching a non-judicial settlement with the
FNE.
In sum, the Guidelines are very innovative and contemporary, and
they include even the possibility to resort to screening tools and
mechanisms to detect anticompetitive conducts.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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