1. Has your national competition authority published guidelines on competition compliance programmes (“CCPs”)? If so, what are the key components of an effective CCP?
  2. Are there any recent cases in your jurisdiction where the NCA/competent courts have discussed the impact of CCPs?
  4. Has the role of the management and/or employees of the company been assessed with respect to preventing, participating in, detecting and reporting violations, or remediating violations? Is there a link between the role of the company's management and/or employees and an effective CCP?
  5. Has the fact that an undertaking has a CCP been helpful in reducing a fine for an infringement of competition law? What facts, arguments or commitments were used to justify the reduction and what is the maximum reduction that can be granted? If a reduction is not granted, why not?
  6. Are CCPs (their adoption or updating) used as evidence for "self-cleaning" measures when an economic operator risks being excluded from a public procurement procedure for collusive behaviour?
  7. Please indicate any additional considerations / rules, trends that are important in your country in relation to CCPs.
  8. Are there legal developments on the horizon in relation to CCPs?

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Italy
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1. Has your national competition authority published guidelines on competition compliance programmes (“CCPs”)? If so, what are the key components of an effective CCP?

On 25 September 2018 the Italian Competition Authority (the “Italian NCA”) adopted its “Guidelines on antitrust compliance” (the “Guidelines”). The Guidelines mention the following main elements, which will need to be included in a CCP:

Adequate corporate and monetary resources must be allocated to the design, implementation and monitoring of the CCP.

  • The CCP must be supported by the top management of the company through their active involvement in its implementation.
  • An Antitrust Compliance Officer must be appointed and entrusted with autonomy, independence, appropriate resources and powers to monitor the implementation and respect of the CCP continuously. The Antitrust Compliance Officer must be able to report directly to the top management.
  • Compliance with competition law should be also recognised in the Code of Ethics and in other compliance tools, such as the Organizational Model pursuant to L. Decree n. 231/2001, as a core value of the company.
  • The ACP must be drawn up on the basis of a risk assessment activity, which needs to precisely identify the areas at risk of commitment of anticompetitive behaviours, as well as the most appropriate actions to prevent and/or deal with such antitrust risks.
  • Trainings must be carried out to ensure that all managers and employees – especially those who operate in the divisions most exposed to the risk of anticompetitive behaviours – have thorough knowledge of antitrust matters and in-depth awareness of the antitrust risks related to their activities.
  • The CCP must provide for reporting channels allowing staff to point out antitrust issues quickly and to report possible infringements of the provisions of the CCP or of competition law. The reporting tools should ensure the anonymity of the reporting party and its protection against retaliation.
  • In addition to the provision of disciplinary measures in the event of infringement of competition rules by employees, the Guidelines also envisage the possibility to define incentives to ensure compliance with the antitrust risk management procedures and processes.
  • The CCP must be periodically monitored to ensure its adequacy in the prevention of anticompetitive behaviours.

If a proceeding is launched by the Italian NCA against an undertaking, the adoption of a CCP may qualify for a reduction of the fines in the following cases:

  1. If an ACP is adopted before the opening of the proceedings:
    1. if the CCP was effective (as it enabled the prompt detection and interruption of the infringement before the notification of the opening of proceedings), the company may obtain a reduction of up to 15% of the sanction;
    2. if the ACP is not manifestly inadequate, a reduction of up to 10% may be obtained, provided that an adequately integrated ACP follows the opening of proceedings;
    3. if the ACP is manifestly inadequate, the company may apply for a reduction of the sanction of up to 5%, provided that substantial changes have been made to the ACP after the opening of proceedings.
  2. In case of ACP adopted ex novo after the opening of proceedings, the company may apply for a reduction of up to 5%.

2. Are there any recent cases in your jurisdiction where the NCA/competent courts have discussed the impact of CCPs?

In July 2023 Italian NCA started a proceeding against 4 companies active in the upload and download of goods at the port of Naples to verify a possible infringement of Italian and EU Competition law for an alleged cartel on the tariffs to be applied to carriers in the port of Naples.

Three out of four companies under investigation communicated to the Italian NCA the adoption and implementation of a CCP after the beginning of the proceedings.

At the end of the proceedings one of the companies was granted a reduction for an amount equal to 5% of the sanction, while the other three were not granted any reduction as they were part of the same group and the controlling company (one of the three) did not implement any CCP after the beginning of the proceedings.  

In case of proceedings of the Italian NCA involving a group of companies, in fact, the Guidelines specify that the reduction can be granted only if both the controlling company and its subsidiaries have adopted a CCP.

3. What arguments have been taken into account in relation to a CCP? Has the fact that a company has a CCP been assessed in terms of the effort made or the results achieved, i.e. the efficiency of the programme? Is the focus on future changes in CCPs or on existing programmes?

In the reported case, the 5% reduction was granted for the adoption of a CCP after the beginning of the investigation by the Italian NCA.

According to the Guidelines this is possible if there is evidence that the CCP has been actually implemented in a way that allows the Italian NCA to verify its adequacy and effectiveness during the course of the investigation.  

The CCP has to be embedded into the culture of the company and for being considered effective it is essential to ensure its effective implementation by means of an adequate control system and the appointment of certain figures such as the CCP manager. It is also important to set up a training system for employees and adopt an effective whistle-blowing system.

5. Has the fact that an undertaking has a CCP been helpful in reducing a fine for an infringement of competition law? What facts, arguments or commitments were used to justify the reduction and what is the maximum reduction that can be granted? If a reduction is not granted, why not?

In the above reported case, the reduction of 5% has been granted thanks to the adoption of a CCP after the beginning of the investigation in a way that has allowed the Italian NCC to verify its adequacy and effectiveness during the course of the investigation.

For a broader overview of the elements of an effective CCP and the possible reductions please see the answer to question 1 above. 

6. Are CCPs (their adoption or updating) used as evidence for "self-cleaning" measures when an economic operator risks being excluded from a public procurement procedure for collusive behaviour?

According to the opinion expressed by ANAC (National Anti-corruption Authority) Guidelines among the elements that may be taken into consideration by the contracting authority with reference to antitrust offenses there is also the adoption of effective compliance programs. 

When assessing a CCP the Italian NCA verifies its effective implementation. Therefore, it is important not only to have an effective CCP in place, but to continue to keep it monitored and improved in line with the growth of the business.

No immediate legal developments are expected for CCPs in Italy.