In October 2014, the Italian Antitrust Authority (IAA) adopted Guidelines on the calculation of administrative fines (Guidelines), with the aim of ensuring transparency, predictability and objectivity of its decisions.
In this regard, we would like to remind clients that a decision of the IAA which ascertains a serious violation of competition law in relation to (horizontal and vertical) anti-competitive practices or abuses of a dominant position, may result in a fine up to 10% of the turnover of each undertaking or entity.
It should be noted that the Guidelines expressly provide that the IAA may positively evaluate, among the mitigating circumstances to be taken into account in calculating the fine, the adoption and respect of a specific and adequate compliance programme, in line with European and Italian best practices.
However, the mere adoption of a compliance programme will not be considered as a mitigating factor unless it is proven that there is an effective and real commitment to ensure its respect.
In this respect, the IAA has set forth the following crucial elements of an effective compliance model:
- full involvement of management;
- identification of persons responsible for the programme;
- training activities in line with the economic size of the business;
- provision of incentives for complying with the programme as well as disincentives for failure to comply with the same;
- implementation of monitoring and auditing systems.
Please note that, as of 13 June 2016, the IAA has recognised such mitigating circumstance for the adoption of a compliance programme before the communication of the Statement of Objection in two cartel cases (in the “Loan rates in the Province of Trento and Bolzano” case a 10% reduction and in the “Production and distribution of concrete in the North of Italy” case a 5% reduction).