The Competition Letter of 2011 of the Competition Authority has been sent to undertakings. The letter mainly mentions the benefits of competition compliance programs and main features they should have. Especially, the effects of guideline issued by the English competition authority Office of Fair Trading (OFT) about competition compliance programs can be also observed in the Competition Letter. It is very important that the Competition Authority gets its hands on competition compliance programs that ensures compliance in competition law and eliminates competition law risks of undertakings. In this regard, it can be said that an era that compliance to competition has a remarkable significance for undertakings has started.
The last Competition Letter signed by President of the Competition Authority, has been sent to numerous undertakings and associations of undertakings, as in every year. The main aim of the Competition Letter; which President of Competition Authority, Nurettin KALDIRIMCI attaches a big importance, is to inform undertakings about competition law and related risks. The Competition Letter of 2011; which can be accessed from the Competition Authority's website, stands out to be an important practice so as to attract undertakings' attention to competition law.
The Competition Letter is sent to a large number of undertakings and associations of undertakings since 2009. Last year it was an informative letter focused on competition advocacy and authorization of the Competition Authority. Nonetheless, Competition Letter 2011 deals with a more specific and business-oriented subject: competition compliance programs. Following brief information on competition policy and competition rules that were already covered in previous Competition Letters, it refers to competition compliance programs in detail. The letter states that despite the 14-year-activities of the Competition Authority, the undertakings still express they are not aware that their conduct is illegal. It is set forth that competition compliance programs are implemented in order to prevent this unawareness and they are very useful in fulfilling their lack of knowledge on competition law and their competition compliance.
Competition compliance programs are applied in order to create a corporate consciousness regarding competition law and its main aim is to decrease the risks attached to competition law through increasing employees' knowledge. Competition compliance programs are mostly performedby legal consultants of undertakings. In this respect, the crucial matter for an efficient competition compliance program is that it should cover a comprehensive and a detailed process rather than simple competition law trainings. Mentioning of competition compliance programs in detail in Competition Letter of 2011 is a concrete example on the importance that Competition Authority pays on this subject. The essentials and the scope that should be included in competition compliance programs have been set forth in the Letter.
Basic elements for a successful competition compliance program, as stated in the Competition Letter of 2011, are as follows:
- Determination and support of senior management
- The existence of appropriate policies and procedures
- Regularly held trainings
- A regular review process
- Application of a consistent disciplinary and encouraging
In addition to these requirements mentioned above, sustainability and consistency to the dynamic competition must also be taken into account as an important matter. With each new decision and precedent, competition law is constantly developing. Consequently, renewing competition compliance programs periodically is a necessity in order to obtain sustainability and the desired goals from competition compliance programs.
Competition Letter of 2011 shows that, the Competition Authority is promoting the competition compliance programs. In this respect, it can be said that the Competition Authority may consider undertakings, which comprise competition compliance programs, in a more positive manner. Undertakings that implement a comprehensive competition compliance program and that have a senior management which stands behind such program would clearly declare their intention to comply with the rules of competition. For this reason, it is extremely crucial that the competition compliance program implemented by an undertaking to carry a certain standard. It would be possible for undertakings to form a corporate culture and cope with the risks of competition law, only by an adequate competition compliance program. Implementation of a program that does not have the required qualifications, would result in not ensuring the benefits that would be gained by competition compliance programs and such program would not make the desired effect on the Competition Authority.
Additionally, OFT had also published a guide in October2010, about competition compliance programs and set out the minimum standards that competition compliance programs should carry. In addition to setting out these standards, an award system had been adopted in the British implementation, in order to increase the knowledge of undertakings' in competition law. Accordingly, for the presumptive penalty of an undertaking that took a competition compliance program, which provides the standards listed in the Guideline, a reduction up to ten percent from the penalty can be given. Demonstrating the positive approach that is also in Competition Letter of 2011 is important. Hence, similar to OFT, the Competition Authority should set out the standards of competition compliance programs and specify that it supports this issue. A guideline related to competition compliance programs and incentive implementations would be decisive for drawing the attention of undertakings on this issue. Such an implementation would also be considered as a good example for competition advocacy.
Another important matter to be taken into account in terms of competition compliance programs is that some undertakings may refrain from some actions that are not in the scope of competition law due to lack of knowledge. A business-oriented competition compliance program would eliminate such unnecessary implementations that may arise in corporations. Similarly, a competent competition compliance program should also aim to take action against illegal implementations of competitors that operate in the same market with the undertaking. This way, relevant undertaking can use competition compliance programs as a lever in the market. Herein, it is important to carry out competition compliance programs with consultants that have a business-oriented approach and competent in economics and industrial economics fields.
Footnotes
1. Office of Fair Trading, "How Your Business Can Achieve Compliance", OFT1278, October 2010
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