The Role of Guidelines in Fostering Competition Policy in Tunisia

7. Compliance programme

Abstract

Competition compliance programmes are not common in Tunisia. Developing guidelines about compliance programmes can help the Tunisian competition authorities to promote and incentivise the adoption of such programmes. This section presents an overview of compliance programme guidelines in selected jurisdictions, aiming to help Tunisian authorities to implement their own guidelines.

7.1. Overview of compliance programme in Tunisia

According to the Peer Review, competition compliance programmes are not common in Tunisia, regardless of the size of the firm (OECD, 2022, p. 151[1]). Tunisian competition authorities could help encouraging the adoption of such programmes, for instance by issuing guidelines in this regard. However, the lack of clear roles and tasks allocation between the DGCEE and the Competition Council when it comes to competition advocacy might pose a challenge in this regard.

Competition authorities have increasingly engaged in preventive compliance efforts worldwide, for instance by promoting compliance programmes. These efforts are complemented by several initiatives, including the ICC Antitrust Compliance Toolkit (ICC, 2013[41]). Compliance programmes include online information and seminars on competition law for employees to help them identify potential anti-competitive practices and the procedures to follow if a potential breach is found.

To promote the adoption of compliance programmes that avoid and/or detect breaches, it is important to develop a strategy and clarify the approach to incentivise firms to adopt them. This includes deciding on whether the authorities should reward companies for adopting a compliance programme, for example by reducing fines for infringements.

Whether or not a benefit is granted in return for the existence of a compliance programme does not depend on the region in which a jurisdiction is located. In Asia, many jurisdictions are willing to grant reduced fines, and the Association of Southeast Asian Nations (ASEAN) guidelines suggest that a reduction in fines could provide an incentive for companies to introduce or improve these programmes. Some Latin American countries have developed compliance policies, and Brazil, Chile, and Peru grant a reduced fine if the criteria set out in their guidelines are met. Similarly, some European jurisdictions are willing to grant a reduction in fines. In North America, the landscape has changed fundamentally since 2011, with Canada and the United States now making clear their willingness to consider compliance programmes (OECD, 2021[42]).

Many jurisdictions have invested significantly in guidance on compliance programmes. Guidelines typically indicate the main elements of an effective compliance programme, resting on the premise that they need to be adjusted to the specificities of firms, their main compliance risks and over time (OECD, 2021[42]).

7.2. Compliance programme guidelines

This section considers the elements commonly covered in compliance programme guidelines by comparing guidelines published in the selected jurisdictions, which can be used by Tunisian competition authorities when developing their own compliance programme guidelines.

7.2.1. Overview of guidelines reviewed

The project team has assessed the compliance programme guidelines of selected jurisdictions, listed in Table A ‎A.5 and summarised in Table ‎7.1.

Table ‎7.1. Overview of guidelines reviewed

Jurisdiction	Guidelines	Date of guidelines
OECD countries
Belgium	✓*	2016
Canada	✓	2015
European Union	✓	2012
France	✓	2022
Non-OECD countries
Kenya	-	-
Philippines	-	-
South Africa	-	-

Note: * Belgium has not properly developed guidelines on compliance programmes, but the competition authority has included a chapter on the topic in its Guidelines on Competition Law to SMEs.

7.2.2. Common features of guidelines reviewed

The following elements have been included in the guidelines of the selected jurisdictions, as summarised in Table ‎7.2.

Table ‎7.2. Summary of common features in compliance programme guidelines in selected jurisdictions

Jurisdiction	Benefits	No one-size-fits-all approach	Management commitment	Risk assessment	Transparency, communication and documentation	Training	Reporting	Monitoring	Regular evaluation and update
OECD countries
Belgium	✓	✓	✓	✓	✓	✓	✓
Canada	✓	✓	✓	✓	✓	✓	✓	✓	✓
European Union	✓	✓	✓	✓	✓	✓	✓	✓	✓
France	✓	✓	✓	✓	✓	✓	✓	✓	✓

Benefits of compliance programme

All guidelines refer to the benefits of implementing a compliance programme, both to the firm at stake and the whole economy. Indeed, compliance programmes aim to increase prevention, detection and deterrence of competition infringements.

For example, the Canadian Guidelines state that compliance programmes aim at (i) informing business of how to minimise competition infringements, avoiding the likely penalties and the costs associated in defending against competition law enforcement; (ii) detecting at an early stage behaviours that may contravene competition law, allowing the firm to be the first-in to request immunity or to be better placed to apply for leniency; and (iii) identifying circumstances where the company is potentially affected by the anti-competitive behaviour of other parties. Other benefits are also mentioned, including maintaining a good reputation and improving a business’ ability to attract and retain customers and suppliers who value companies that operate ethically (Competition Bureau, 2010, pp. 3-4[43]).

In addition, according to the French Guidelines, competition compliance programmes have three main benefits: (i) help establish free and undistorted competition; (ii) assist preventing financial and reputational risks; and (iii) facilitate the detection of infringements (Autorité de la concurrence, 2022, pp. 3-4[44]).

The guidelines of the European Commission mention that firms should comply with competition rules not only for being regarded as doing business ethically, but also for avoiding the potentially high cost of non-compliance (European Commission, 2012, p. 9[45]).

As for the impact of compliance programmes on fines imposed in case of competition infringements, the guidelines reviewed are not uniform. On the one hand, the Canadian Guidelines state that the existence of a programme will be treated as a mitigating factor by the Competition Bureau (Competition Bureau, 2010, p. 6[43]). On the other hand, the Belgian Guidelines provide that compliance programmes are not considered a mitigating circumstance in case of infringement (Autorité belge de la concurrence, 2016, p. 14[46]). Likewise, the European Commission Guidelines specify that the existence of a compliance programme is neither considered an aggravating nor a mitigating circumstance for the purpose of setting fines (European Commission, 2012, p. 21[45]). The French guidelines are silent in this regard.1

No one-size-fits-all approach

All guidelines highlight that there is no one-size-fits-all approach to compliance programmes, meaning that firms should implement different programmes, for instance as regards their size, sector of activity and the risks they face in their day-to-day operations.

For example, the Canadian Guidelines state that “the Bureau recognizes that SMEs and larger business have different needs and concerns”, and therefore “each business should implement and follow a corporate compliance programme that is commensurate with its size and business activities” (Competition Bureau, 2010, p. 1[43]).

Likewise, the European Commission Guidelines mention that compliances programmes should be tailor-made to the company concerned, considering its needs, as well as its type, size and resources (European Commission, 2012, p. 21[45]).

The French Guidelines also establish that compliance programmes should be “designed by and for the company; it is a ‘tailor-made’ project that must be adapted to the markets, activities and products, internal organisation and culture, as well as to the decision-making chain and the mode of governance” (Autorité de la concurrence, 2022, p. 5[44]).

Management commitment

Most guidelines state that an effective compliance programme requires the full, visible support of the firm’s leadership. This should be reflected by the resources committed to the programme, including the appointment of the compliance officer.

For instance, the Canadian Guidelines stress the importance of management’s clear, continuous and unequivocal commitment and support. They also recommend that a firm assign responsibility for its compliance programme (the compliance officer) to a high-level executive position, who should be appointed by the board of directors (Competition Bureau, 2010, pp. 10-12[43]).

The European Commission Guidelines indicate that “unequivocal senior management support is vital” for effective compliance programmes. They also suggest the designation of an individual member of the senior management as the compliance officer to guarantee lasting commitment to and visibility for compliance. Moreover, firms must devote sufficient resources, vis-à-vis their size and the risks they face, to ensure the existence of a credible compliance programme (European Commission, 2012, p. 17[45]).

The French Guidelines also refer to the importance of management leadership for “involving all teams and leading the company to effectively commit to compliance” (Autorité de la concurrence, 2022, p. 6[44]).

The Belgian Guidelines mention that the responsible for the compliance programme should have access to the shareholders (owners) and top management of your company and regularly reports to them (Autorité belge de la concurrence, 2016, p. 16[46]).

Risk assessment

The guidelines reviewed in this report also state that companies must regularly identify and assess their compliance risks, particularly when entering new markets or hiring for key staff. In particular, they should identify operations, units and personnel most at risk.

The Belgian Guidelines, for example, suggest that companies assess their risks, including whether they hold a dominant position in a relevant market, as well as whether the most important arrangements (e.g. distribution contracts and potential joint venture agreements or structural collaboration agreements, notably with competitors) involve hard-core restrictions (Autorité belge de la concurrence, 2016, p. 15[46]).

Furthermore, according to the Canadian Guidelines, companies must engage regularly in a risk assessment of their potential risks, in order to design proportionate compliance measures to meet those risks. Risk assessment should identify areas of risk, employees more exposed to risk and changes that can affect risk profiles (Competition Bureau, 2010, pp. 12-15[43]).

The guidelines European Commission suggest that an effective compliance programme is based on a comprehensive analysis of the areas in which the company is most likely to run a risk of violating EU competition law, in light of the sector of activity, the frequency and level of the company’s interaction with competitors, the characteristics of the market, but also the position held by each member of staff (European Commission, 2012, p. 16[45]).

The French Guidelines also refer to the need for a risk analysis, “which leads to the establishment of a map of the identified risks” (Autorité de la concurrence, 2022, p. 5[44]).

Transparency, communication and documentation

All guidelines highlight that compliance programmes should be implemented in a transparent manner, properly documented and disclosed throughout the company.

The Canadian Guidelines recommend that firms develop and document compliance policies and procedures, which should be designed in line with the company’s operations and the daily tasks of the employees. These policies and procedures should include internal controls designed to prevent infringements from happening (e.g. with a list of “dos” and “don’ts” and “red flag” issues). Compliance policies and procedures should be distributed to all staff or, at least, to all relevant staff. Employees should also be required to sign a certification letter stating that they have read and understand the company’s Code of Conduct and applicable compliance policies (Competition Bureau, 2010, pp. 14-16[43]).

Similarly, the European Commission Guidelines indicate that the company’s compliance strategy should preferably be laid down in writing (e.g. in the form a manual) and disseminated throughout its entire organizational structure. Establishing a practical set of “don’ts” and “red flags” is also encouraged. Moreover, staff might be required to provide written acknowledgment of receipt of relevant information, such as compliance manual (European Commission, 2012, pp. 16-17[45]).

The guidelines from Belgium suggest the establishment of a code of conduct taking into account what is relevant to the company at stake (Autorité belge de la concurrence, 2016, p. 16[46]). Likewise, the French Guidelines refer to the implementation of information measures, which may contain the existence, purpose and content of the compliance programme, the meaning and practical scope of the competition rules, as well as the internal mechanisms for obtaining advice or alerting someone to the existence of an actual of potential infringement of these rules (Autorité de la concurrence, 2022, pp. 6-7[44]).

Training

According to all guidelines, compliance programmes should include mandatory compliance training for all staff in position with identified risks and to new employees.

The European Commission Guidelines point out the relevance of training on EU competition law. This can be done, for example, by including a module on competition in newcomers training program. In particular, training should be provided to staff members who are most likely to face compliance risks, such as sales personnel and sales managers and anyone attending trade associations or industry events (European Commission, 2012, p. 18[45]).

Likewise, the French Guidelines highlight the relevance of the training and awareness-raising activities on competition rules and the practical operation of the compliance programme, although different categories of personnel should receive different level of actions according to their position and their exposure to risk (Autorité de la concurrence, 2022, p. 7[44]).

The Belgian Guidelines refer to the need to provide staff with appropriate training on compliance issues, for instance as part of the starter pack (Autorité belge de la concurrence, 2016, p. 17[46]).

The Canadian Guidelines also mention the need for on-going training on compliance issues for staff at all levels who are in a position to potentially engage in, or be exposed to, competition infringement (Competition Bureau, 2010, pp. 16-18[43]).

Reporting

All guidelines acknowledge that compliance programmes should include a system to guarantee that personnel can report violations of the compliance programme or competition infringements confidentially and without threat of retaliation.

For example, the Canadian Guidelines suggest that a confidential, internal reporting procedure incentivises staff to provide timely and reliable information on potential competition violations. Accordingly, “managers, employees and other acting for the business must be able to obtain advice and raise concerns without fear of retaliation and without first having to raise issues with their superiors or supervisors”. Compliance programmes should clearly indicate which actions require reporting, and when, how and to whom they should be reported (Competition Bureau, 2010, pp. 19-20[43]).

The European Commission Guidelines establish that proper internal reporting mechanisms are a feature of a successful compliance strategy. The company should create “an environment that encourages employees to speak up when they are confronted with questionable situations” (European Commission, 2012, p. 18[45]). Likewise, both the Belgian and French guidelines mention the need to introduce a procedure for handling requests for advice and alerts of actual or potential infringements (Autorité belge de la concurrence, 2016, p. 16[46]; Autorité de la concurrence, 2022, p. 7[44]).

Monitoring

Most guidelines highlight the importance of monitoring on an on-going basis how the compliance programme has been working and whether and how potential infringements have been managed.

For instance, the Canadian Guidelines state that firms should monitor their compliance programmes regularly to guarantee that their implementation is effective. In addition, they should also routinely verify whether competition infringements have occurred and whether they have been dealt with appropriately, including by co-operating with the Competition Bureau (Competition Bureau, 2010, pp. 18-20[43]).

The French Guidelines emphasise the relevance of controls to ensure that the compliance programme is being followed at all levels of the company (Autorité de la concurrence, 2022, p. 7[44]).

The European Commission Guidelines mention that monitoring and auditing are effective tools to prevent and detect anti-competitive practice inside the company. When the compliance programme cannot prevent any infringement from happening, the company must take appropriate measures without delay, so that any potential infringement is swiftly brought to an end. This includes, for instance, co-operating under the leniency programme and the settlement procedure (European Commission, 2012, pp. 18-19[45]).

Regular evaluation and update

Most guidelines also recognise that compliance programmes are a drive for continuous improvement, requiring regular review to guarantee they remain up to date and effective.

The need for regular assessment of a programme’s ability to deliver its core objective is indicated by the Canadian Guidelines as a requirement for a credible and effective compliance programme. This continuous process can also capture new or emerging risks. Various tools can be used to conduct a review, such as individual and group interviews, focus groups, surveys and exit interviews. Review by an independent third party should also be considered. When necessary, changes to the compliance programme should be implemented (Competition Bureau, 2010, pp. 21-22[43]). The European Commission and French guidelines also mention that compliance programmes should be regularly reviewed and updated (European Commission, 2012, p. 18[45]; Autorité de la concurrence, 2022, p. 7[44]).

7.2.3. Less common but helpful features of guidelines reviewed

The review revealed less common but helpful features in the guidelines in the selected jurisdictions which are worth mentioning. A summary of these features is set out in Table ‎7.3.

Table ‎7.3. Less common but helpful features of compliance programme guidelines

Jurisdiction	Voluntary nature of compliance programmes	Disciplinary actions and incentives for compliance	Checklist and template documents	Examples	Reference to additional information
OECD countries
Belgium					✓
Canada	✓	✓	✓	✓
European Union		✓			✓
France

Voluntary nature of compliance programmes

The Canadian Guidelines expressly indicate that the implementation of a compliance programme is generally voluntary. However, it is mentioned that in some circumstances the Bureau may recommend or request the establishment of a compliance programme and the appointment of an independent compliance monitor to oversee the implementation and operation of any such compliance programme (Competition Bureau, 2010, p. 2[43]).

Disciplinary actions and incentives for compliance

The Canadian and European Commission guidelines state that compliance programmes should introduce incentives for employers and disciplinary measures in case of breach of competition law and the compliance programme.

According to the Canadian Guidelines, compliance programmes should explicitly provide for consistent disciplinary actions (e.g. suspension, demotion, dismissal or legal action) to be taken when individuals fail to comply with the programme and/or infringe competition law. Moreover, compliance programmes should establish that disciplinary actions will be taken when a manager fails to take reasonable steps to prevent or detect competition violations or does not initiate appropriate disciplinary action. In addition, compliance programmes should provide appropriate incentives for performing in line with them, for example by considering compliance and active support of the programme for the purposes of employee evaluations, promotions and bonuses (Competition Bureau, 2010, pp. 20-21[43]).

The guidelines of the European Commission also refer to introduction of penalties for breach of the internal compliance rules, which need nevertheless be consistent with national employment law. Furthermore, the guidelines indicate the importance of implementing positive incentives for employees to consider compliance duties with utmost seriousness. For instance, this could be achieved by including compliance duties as part of job descriptions and considering vigilant attitude as the staff evaluation criteria (European Commission, 2012, p. 17[45]).

On the other hand, the Belgian guidelines state that more important than dismissing the individuals involved in competition infringements is to ensure that they co-operate as closely as possible with the investigations (Autorité belge de la concurrence, 2016, p. 16[46]).

Checklist and template documents

The Canadian guidelines include a “Due Diligence Checklist” to help businesses comply with competition law. They also provide the “Corporate Compliance Program Framework”, which is a flexible tool that can be adapted to the specific activities and resources of a particular business. There is also a “Certification Letter” template, which all employees at compliance risk should be asked to adhere to (Competition Bureau, 2010, pp. 25-40[43]).

Examples

The Canadian guidelines provide for hypothetical examples to illustrate the analytical framework that the Bureau will typically apply when assessing a pre-existing competition law compliance programme (Competition Bureau, 2010, pp. 41-53[43]). Such examples can be very useful for guiding businesses when developing compliance programmes, with several practical aspects.

Reference to additional information

The Belgian and European Commission guidelines include references to other relevant documents which may guide business as regards compliance programmes. For instance, the Belgian Guidelines indicate compliance guidelines from other competition authorities or organisations (Autorité belge de la concurrence, 2016, p. 18[46]), while the European Commission refer to relevant webpages from the Commission (European Commission, 2012, p. 22[45]).

Key takeaways – Compliance programme

• Compliance programmes can contribute to an effective competition compliance policy, by helping prevent anti-competitive conduct, facilitate detection and/or reduce the duration of such behaviour.

• Competition compliance programmes are not common in Tunisia. Developing guidelines about compliance programmes can help the Tunisian competition authorities to promote and incentivise the adoption of such programmes.

• When designing their compliance programme guidelines, the Tunisian authorities should indicate the elements they consider essential for an effective competition compliance programme such as benefits, management commitments and risk assessment.

Note

← 1.  According to (OECD, 2021, p. 16[42]), in 2012 France has adopted a policy to allow a fine reduction of up to 100% for the commitment to introduce or significantly improve an existing programme in the framework of the settlement procedure, on top of the 10% settlement reduction. However, a 2017 decision of the Autorité de la concurrence concluded that compliance programmes were expected to be incorporated by companies of a certain size and therefore they would not be considered as a mitigating factor when setting fines in cartel cases.