Current developments in Compliance: the publication of the UNE 19603 on Compliance Management Systems regarding free competition
Recently, the Spanish Association for Standardisation (UNE) has published the standard UNE 19603, Compliance Management Systems in matters of free competition (hereinafter, UNE 19603).
This standard provides the necessary guidelines to establish, develop, implement, evaluate, maintain and continuously improve a Compliance Management System in this area (or its inclusion in a Compliance Management System with a broader perspective), establishing the requirements that these systems must meet in order to be certified by an independent authority.
This standard, like any technical standard issued by the UNE, establishes issues regarding the determination and documentation of the context of the organisation; leadership, roles and responsibilities; planning of actions and objectives; resources to be allocated, due diligence processes, training and other generalities; operational guidelines; monitoring, measuring and auditing; and, finally, among others, actions to be taken for the continuous and reactive improvement of the Compliance Management System in the area of free competition.
Thus, the different blocks of anti-competitive conduct that can be observed in an organisation, which seek to be prevented by means of the different elements that make up a Compliance Management System that includes free competition issues, are as follows:
- Collusive behaviour.
- Abuse of dominant position.
- Distortion of competition by unfair practices.
- Economic concentrations of non-communicated or non-authorised organisations.
- State aid which exceeds regulatory limits and/or may restrict free competition.
It should be noted that participation in the above conducts is subject to significant penalties of different nature:
- Financial penalties of an administrative nature that can reach multi-million euro amounts – among many others, cases such as that of the automotive cartel, sanctioned with 171 million euros in 2015.-;
- The prohibition on contracting with the public sector.
- Criminal convictions in particularly serious cases (through the offences of price-fixing and market manipulation, regulated in Article 284 of the Spanish Criminal Code, among others).
For all of the above reasons, the UNE 19601 standard is a useful tool for managing the competition risks to which all types of entities may be exposed, but especially those which, due to their size or the sector in which they participate, among other cases, have a greater capacity to affect free competition.
Finally, it should be noted that the services offered by the Compliance Department of Molins Defensa Penal include the design, development and implementation of Compliance Systems in matters of Competition Law, whether these systems are independent or integrated into a broader regulatory compliance system.
Molins Defensa Penal, Department of Compliance.