On 25 September 2018, the Italian Competition Authority has adopted Guidelines on antitrust compliance to provide undertakings with guidance on: i) the definition of the content of the compliance programme; ii) the request for an assessment of the programme for the purposes of awarding possible mitigation; and iii) the criteria that the Authority intends to adopt in its assessment for the purposes of awarding mitigation.
In particular, the Guidelines define, in line with international best practices, the main elements of an antitrust compliance programme, among which the recognition of the value of competition as an integral part of corporate culture, the identification and assessment of antitrust risk specific to the undertaking, the design of management processes suitable to reduce that risk, the definition of an incentive scheme and the execution of training and of periodic monitoring and possible updating of the programme.
The undertaking involved in a formal investigation that intends to benefit from mitigation in light of its compliance programme must submit a request to the Authority accompanied by an explanatory report that clarifies the reasons why the programme is adequate for the prevention of competition infringements and the concrete initiatives put in place by the undertaking for the effective and efficient application/implementation of the programme.
Compliance programmes adopted before the opening of proceedings may qualify for mitigation of up to:
- 15%, for adequate compliance programmes that have worked effectively to enable the prompt detection and interruption of the infringement before the opening of proceedings. In cases eligible for leniency, such a reduction may be granted only if the undertaking has submitted a leniency application;
- 10%, for programmes that are not manifestly inadequate, provided that the undertaking adequately amends the programme and begins its implementation after the opening of proceedings (and within six months from the opening of proceedings).
- 5%, for programmes that are manifestly inadequate, only if the undertaking introduces substantial changes to the programme after the opening of proceedings (and within six months from the opening of proceedings).
Compliance programmes adopted ex novo, after the opening of proceedings, may qualify for a reduction of the fine up to 5%.
The final adoption of the Guidelines followed a public consultation, during which stakeholders could submit their observations.