UROD published a new bulletin to help understand the guidelines announced by the competition agency, that intends to encourage economic agents to develop internal mechanisms to prevent conducts against competition.

The Chilean competition Authority, Fiscalía Nacional Económica (FNE) published new Guidelines on Competition Law Compliance Programs.

In its Guidelines, the FNE familiarizes and presents the topic; introduces what a competition compliance program is; lists and explains the conditions for an effective compliance program; specifies the elements and components that may be included in it; highlights the benefits of a well-designed, credible and effective compliance program; and indicates who should implement a program of this kind.

Conditions for an effective compliance program

According to the FNE, the four conditions that ought to be concurrently met for a compliance program to be effective are:

  1. Real commitment to comply with competition law (this commitment is demonstrated through the actions of each agent, requiring that both internal and external policies be consistent with the legislation and the intention to comply);
  2. Identification of current and potential risks facing the company (the FNE recommends a detailed study of the risks to which the operator is exposed, hiring experts in the area of competition and regulation, which benefit from better tools to identify risks and propose measures to take);
  3. Internal structures, mechanisms and procedures in line with competition law (for instance, corporate commercial policies and incentives, compensations and other benefits for workers –and the business goals associated with these benefits–, must be compatible with competition law in general and with the prevention of the risks identified in particular); and,
  4. The involvement of managers and/or directors in the compliance program (the compliance program must include the participation of top executives and directors of the company, which cannot be confined only to the decision to adopt the program).

Benefits of a well-designed and effective compliance program

In general terms, the FNE considers that the main benefits are the prevention of contraventions and detection and damage control.

In this regard, the FNE considers that even if a violation exists, the correct implementation of a compliance program provides three major benefits:

  1. Possible reduction of the fine to be applied in the context of an antitrust claim to the Chilean Competition Tribunal (the "TDLC");
  2. The timely use of the benefits of the leniency program (in case of collusion or cartel); and
  3. The possibility of reaching a non-judicial settlement with the FNE.

In sum, the Guidelines are very innovative and contemporary, and they include even the possibility to resort to screening tools and mechanisms to detect anticompetitive conducts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.