In the UK, the starting position with regard to competition law compliance activities will be neutral but the Competition & Markets Authority (CMA) will consider carefully whether evidence presented of compliance activities in a particular case merits a discount from the penalty of up to 10%. Thus, the mere existence of compliance activities will not be treated as a mitigating factor. However, in an individual case, evidence of adequate steps having been taken to achieve a clear and unambiguous commitment to competition law compliance throughout the organisation (from the top down) – together with appropriate steps relating to competition law risk identification, risk assessment, risk mitigation and review activities – will likely be treated as a mitigating factor. The business will need to demonstrate that the steps taken were appropriate to the size of the business concerned and its overall level of competition risk. It will also need to present evidence on the steps it took to review its compliance activities, and change them as appropriate, in light of the events that led to the investigation at hand.
By way of recent example, in May 2016 the CMA applied a 5% discount to the fine imposed on Ultra Finishing Ltd, which breached UK competition law by preventing retailers from discounting online prices. This reduction was in recognition of Ultra’s commitment to set up a programme to ensure compliance with competition law within its business and among its staff. In particular, the company agreed to roll out tailored compliance training for all employees, and has put in place a detailed procedure to identify, assess and mitigate competition law risks.