1. Adaption of antitrust compliance program
to the local regulatory environment
Vladimir Sayenko
Partner
March 2016

2. What is antitrust compliance?
What is compliance?
Compliance means respecting the law. In the competition field, it means business proactively respecting competition rules.
The primary benefit of an antitrust compliance program is to avoid or catch quickly anticompetitive conduct within the company.
The “United States Sentencing Guidelines” specifically identify an effective compliance and ethics program as a basis for reducing a company’s “culpability score,” and therefore, the company’s ultimate criminal fine and penalties.
(U.S. v. KAYABA INDUSTRY COMPANY, September 2015)
A consulting firm that provided services to the cartelists can be liable, even if it is not present on the market where the infringements were committed (the Court of Justice decision in the Heat Stabilisers cartels case Commission v AC-Treuhand AG of 22 October 2015)

3. Antitrust investigations
Classification of antitrust compliance risks
Antitrust investigations
Provision of inaccurate information
Failure to meet deadline
false substance
Anticompetitive concerted practices
cartels
verticals
parallel behavior
bid riding
Abuse of dominant position
price fixing
entry/exit market barriers
Unfair
competition
misleading advertisement
parasitic copying
Merger control
failure to obtain merger clearance
post-closing risks
Private Damages Claims

4. Risk zones by staff category
Anticompetitive concerted practices
Abuse of dominant position
Unfair competition
Merger control
Provision of inaccurate information
Senior management √
Legal department
Sales department
Marketing department
Administrative staff

5. . Compliance workflow Starting point In-house v external counsel:
Acknowledgment
of violation
Leniency
procedure
Regulator consultations, comfort letters
Normal
Collection of feedback, proactive monitoring and audits
In-house v external counsel:
most civil law countries do not protect communications between corporations and their in-house lawyers!
Introduction or update of compliance policy, regular employee education .
Compliance due diligence
Starting point
Activity

6. Review of correspondence Interviews with managers
Competition Compliance Due Diligence
Due diligence report
Review of
documents
Review of correspondence
Safety
Winter is coming…
Interviews with managers
Mock dawn raids

7. Compliance embedded as company culture and policy
Fundamental principles of antitrust (with local adaptation):
no price fixing
no customer allocation
no market allocation,
no bid rigging
Other Market Players Interaction
Communication with the Regulator
Code of conduct:
Reporting of all contacts with competitors
Participation in industry associations
Anonymous hotline to report violations
No retribution against whistleblowers
No destruction of evidence
Dawn Raid Defense

8. Employee Education Top Managers Legal department Heads of departments
Sales
department
Marketing
department
Other
departments

9. Preliminary conclusions
Formal consultations with regulator
Preliminary conclusions
(comfort letters)
Abuse of dominant position
Cartels and other
concerted practices
Concentration
Unfair competition

10. Leniency conditions Leniency Procedure First to apply
Not the initiator
Termination of violation
Cooperation with Regulator

11. Acknowledgment of Violation
Fine
Anticompetitive concerted practices
up to 10% of revenue
Abuse of dominant position
Unfair competition
up to 5% of revenue
Merger control
temporary amnesty cap:
EUR 4000 until mid-September 2016
Provision of inaccurate information
up to 1% of revenues
EUR 530 to EUR 5300 until mid-September 2016
Fining Guidelines (Recommendations)
dated 15 September 2015 and 16 February 2016

12. Judicial Review No judicial review on merits
Fining guidelines are not mandatory
AMC is always right: wins vast majority of cases
Judicial reform:
Commercial v. Administrative Courts

13. E-mail: info@sk.ua Website: www.sk.ua
10 Muzeyny Provulok
Kyiv , Ukraine
Теl: Fax: