The CNMC publishes compliance programme assessment criteria for the purposes of mitigation of liability in the event of investigation and of avoidance of the prohibition of contracting with the public administration

16 June 2020

The Guide is intended to help companies in their efforts to implement and develop compliance programmes. In effect, compliance programmes allow businesses to prevent, detect and react early to illegal conduct, which may generate criminal and administrative liability, as well as affect their reputation.

The Guide shows, on the one hand, the basic criteria that the CNMC considers relevant for an effective compliance programme and, on the other hand, the cases in which the existence of an effective compliance programme allows the company that has implemented it to obtain mitigation of the liability incurred by the infringement of the competition rules and regulations or a modulation of the appropriate penalty, all with the aim of encouraging the adoption of these programmes by businesses. In this context, it should be noted that this type of programme strengthens the implementation of leniency policies by allowing the early detection of cartels and making it possible to report them to the competition authorities.

But to be truly effective, compliance programmes must ensure that there is a real commitment to compliance, which must necessarily include a clear establishment of parameters of conduct and the implementation of organisational measures for their development. The Guide establishes assessment criteria in respect of the main elements that compliance programmes normally include: (a) the involvement of the company's directors and managers; (b) the independence and autonomy of the compliance officer; (c) the identification of the risks of carrying out practices that restrict competition; (d) the design of protocols and control mechanisms; (e) the training of the company's personnel; (f) the existence of a complaints inbox or channel; (g) the internal procedure for the handling of infringements and complaints; and (h) the applicable internal disciplinary system.

With regard to the effects that a company’s implementation of a compliance programme may have, it should be noted that, in addition to the company’s exemption from criminal liability, the benefits of immunity or reduction of fines derived, where appropriate, of the leniency programmes and the non-application of the ban on contracting with public authorities - matters regulated by special rules - the company may benefit from the mitigation of its liability with regard to the infringement (mitigating circumstance) or from the modulation of the penalty that may be appropriate to it (fine reduction).

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