Compliance Programme
Why comply with competition law?
All businesses have a duty to act lawfully. In the case of public listed companies, directors are responsible for ensuring this, and may be removed from office in the event of failure. Compliance with competition law is more than just good corporate governance, however. Compliance reduces the risk of the company being subjected to an investigation by the CCS, which can tie up senior management time and involve the need to commission independent legal advice. In the event of an infringement of the law, the business can face significant financial penalties, third party actions and loss of reputation and goodwill. Further details of the consequences of non-compliance can be found in our guidelines on Enforcement and Appropriate Amount of Penalty. (Click here to access the guidelines)
There are also wider benefits to business and society from the new law. Compliance with competition law will ensure that Singapore's markets remain healthy and competitive. This reaps benefits for both businesses and consumers as healthy competitive markets encourage businesses to be more efficient and innovative, while consumers, in turn, stand to gain from firms that are more responsive to their needs.
How can a business comply with competition law?
As every business is unique, different companies will have to take different steps to ensure compliance with competition law. These depend on a range of factors, including the size and nature of the business, and the frequency of contact of employees (especially sales staff and senior managers) with their competitors.
For example, businesses which are able to significantly affect the market in which they are operating or which have large market shares, may be more vulnerable to allegations of abuse of their strong position in the market. Their agreements are also more likely to have an appreciable effect on the market. Employees or directors of a business who have regular contact with competitors on a business or social basis may run a higher risk of colluding. More information on how the CCS assesses business conducts and practices that contravene competition law can be found in our guidelines on the Section 34 Prohibition and the Section 47 Prohibition. (Click here to access the guidelines)
The CCS encourages businesses to self-assess their risk of infringing competition law before deciding on how best to ensure compliance. Businesses may find it useful to refer to our indicative check-list of behavior as a starting point. If a business assesses that it runs a risk of infringing competition law, it may wish to seek professional advice on the appropriate measures to mitigate the risk.
What is a compliance programme?
A compliance programme provides a formal internal framework for ensuring that businesses, i.e., the management and individual employees, comply with competition law. It may include such elements as training to raise awareness of the law, the use of checklists to ensure compliance by individual staff with company policies, recording systems to document any permitted contacts that staff have with competitors, and independent reviews of agreements, behavior and staff to monitor ongoing compliance. These elements are discussed below.
Why have a compliance programme?
A successful compliance programme should minimize the risk of a business from infringing the Competition Act. A compliance programme can also help a business identify any possible infringements early on, allowing it to take appropriate remedial action. In the case of cartels, early detection is crucial if the business is to benefit fully from the leniency programme, which can offers 100% immunity from financial penalties in certain circumstances. Further, if employees understand competition law, they will also be able to recognize when the business is a victim of anti-competitive agreements or conduct, and be better-placed to protect the business' interests by making a reasoned complaint to the CCS.
A compliance programme cannot completely indemnify a business from wrongdoing if it was found to have infringed the law. However, a programme may help to reduce the financial penalty, and, in certain sectors, will reduce its insurance premiums. The CCS will consider such a programme as a mitigating factor if the CCS deems it to be effective.
What are the hallmarks of an effective compliance programme?
The content of a compliance programme must be tailored to a business' particular requirements. There is no standard programme that will apply in all cases. However, certain general features should be included if it is to work well.
An effective compliance programme should contain the following elements:
A compliance programme goes further than a written or verbal commitment to comply with the law. It should be actively implemented and promoted through appropriate policies and procedures.
Appropriate policies and procedures to ensure compliance with competition law
For a compliance programme to work well, businesses should put in place effective policies supported by appropriate procedures. An effective policy could include seeking a written undertaking from employees and directors to conduct their business dealings within the compliance framework and taking disciplinary action against employees/directors whose actions resulted in an infringement of the law. The relevant procedures should give employees avenues to seek advice on whether a particular transaction complies with competition law and report activities that they suspect infringe the law.
Staff should be educated on the business' policy and procedures on compliance. One way of doing this would be to issue a compliance manual/handbook detailing competition law and the business' compliance procedures.
Support and adherence of senior management
The support and adherence of senior management should be visible, active and regularly reinforced as these are important indicators of a business' commitment to complying with competition law. They not only signal to external stakeholders that the business values compliance, but also encourage junior employees within the organization to support the compliance programme and actively follow its principles.
Active and ongoing training for employees at all levels who may be involved in activities concerning competition law
Training on competition law itself and on the business' policies and procedures in relation to compliance should be conducted. The training could be offered as part of the induction programme for new staff and on a regular basis thereafter to reinforce the compliance message and keep staff updated on any changes in business practices and the law. Businesses should keep a record of any training given.
Regular evaluation and review
Evaluation is essential as a means of ensuring that the compliance programme is working properly, as well as to identify and address areas of potential risk. Evaluation could take the form of testing individual employees' knowledge of the law, policy and procedures. Adherence to compliance policy could also be used as one of the criteria against which an individual's and department's performance is appraised. The evaluation process should be carried out as openly as possible to indicate to employees that their conduct is constantly subject to review against the terms of the compliance programme. Firms may also wish to include independent reviews of their agreements or behavior on a sampling basis. |
How can my business proceed to put a compliance programme in place?
Information on the different types of compliance programme is extensively available on the Internet. You may also wish to consider seeking professional advice from a legal adviser or a compliance specialist. Putting a compliance programme in place should be seen as the start of an ongoing process, rather than an end in itself. The programme must be ongoing and sufficiently flexible to adapt to the changing requirements of the business. The regular evaluation process should ensure that the compliance programme continues to be relevant to the company's business.
Will the CCS endorse any compliance programmes?
The CCS does not endorse individual compliance programmes, but may refer to individual examples of best practice from time to time in its general communications.