The OECD has recently released its report ‘Promoting Compliance with
Competition Law’ [DAF/COMP(2011)20, http://tinyurl.com/OECDCompliance2011]. In this policy roundtable report, the OECD Competition Committee analyses the reasons behind the current relatively low level of development of competition compliance programs, as well as best practices to try to promote their adoption by a broader base of companies across jurisdictions and sectors of economic activity.
According to the report, one of the causes for the relatively low compliance efforts made by companies seems to be that:
companies may be more inclined to commit resources to those areas of law that are associated with the strongest moral condemnation. In other words, the choice to promote compliance with a law is influenced by the degree to which society accepts the idea that the behaviour prohibited by that law should be illegal. For this reason, competition compliance may sometimes slip down the list of priorities behind other areas such as bribery and fraud. Some commentators have emphasised that for companies to take competition compliance more seriously, the immoral aspect of competition violations should be communicated more strongly. Competition authorities should therefore consider more actively engaging with the media and increasing advocacy efforts to promote the idea that competition law infringements are not only illegal, but immoral.
In my view, this may be a step in the wrong direction but it may also not work in societies where certain levels of illegal collaboration between competitors are actually not seen as an immoral practice. However, in this day and economic scenario, we may have an even more appealing argument than morality: simply and plainly, economic efficiency.
If we truly want to help our economies recover, we need a thriving competition environment (free from opportunistic 'crisis cartels' to begin with). Along these lines, yesterday's speech by Commissioner Almunia at the European Competition Day is a rather good reminder:
Competition control helps Europe’s economy become more competitive. Competition authorities create better conditions for economic growth – and Europe needs them more than ever [...]Nothing can boost a sustainable growth pattern more than turning the Single Market into a reality for innovative entrepreneurs, efficient businesses, and 500 million consumers. The work of the EU competition authority has two main effects in this context. First, in the knowledge economy, a growing part of our enforcement involves industries where information is key, such as financial services, telecoms, and the digital economy – and these are crucial markets for growth. In doing so, we do not shy away from taking on corporations with a global reach. Second, our investigations and decisions help Europe keep its edge over its global competitors by promoting competition across the whole Single Market [...]These are some of the ways in which competition policy can promote growth in Europe. Our action can contribute to keep the business environment in Europe more efficient; it can effectively foster our process of integration; and it can give lower prices and a wider choice to consumers. For that purpose, we must fight against business practices and certain government decisions that slow down the economy; harm competitiveness and innovation; and taint economic relations with an element of injustice.
Hopefully, if this is well understood, it will be sufficient to stress that anticompetitive practices constitute a barrier to economic growth and to recovery from the current crisis. Given the current climate of awareness of the relevance of boosting economic growth to avoid further cuts in social services (amongst other things), it should be sufficient to stress clearly and to disseminate the message that anticompetitive practices are socially empoverishing. In the end, it's the economy ...