November 21, 2013
Canada’s (relatively new now) Commissioner of Competition is on the road at the moment, having delivered remarks yesterday in India. In a short but focused speech in Kashipur India, the Commissioner focused quite a bit on the history of Canadian competition law, the importance of competition to an effective economy and compliance.
A concept called “shared compliance” (i.e., between the Competition Bureau, legal community and marketplace participants) has been one of the new Commissioner’s recent turns of phrases, and it was central again in his remarks yesterday in India. In emphasizing the benefits of competition compliance and the obligation for companies and other organizations to adopt credible and effective competition law compliance programs, the Commissioner said:
“Getting back to compliance — by now, companies should be well aware of the potential for loss of reputation and damage to carefully cultivated brands that can result from the failure to comply with competition laws. In order to ensure compliance, companies must be aware of the competition legislation and regulations that apply to them and also of the approach that their competition authority undertakes to apply these laws.
It is incumbent on companies to keep abreast of what their competition authority is doing. As the saying goes, ignorance of the law is no excuse. The most effective way for a company to protect its business and its brand is to be aware of its respective competition authority’s practices, procedures and policies.”
In Canada, competition law compliance programs are not mandated by the federal Competition Act but the adoption of a “credible and effective” compliance program tailored to a particular company’s or other organization’s activities is a mainstay Competition Bureau and counsel recommendation.
Options for companies, associations and other organizations range from a full competition law compliance program (reflecting the Bureau’s five recommended elements in its Corporate Compliance Programs Bulletin – in the process of being updated) to more streamlined approaches, such as adopting guidelines, “do’s and don’ts” or other practical tools for company/association personnel and specific activities.
In addition to his remarks on competition compliance, the Commissioner also spoke about the Bureau’s cooperation with its international antitrust enforcement counter-parts, work with international NGOs and consumer protection groups (e.g., the International Competition Network (ICN) and International Consumer Protection Network (ICPEN)) and its recently announced Whistleblowing Initiative.
The Commissioner also signaled his approach to competition law as an enforcer saying: “[a]gain, the message for businesses is: if you decide to engage in anti-competitive behavior, make no mistake, you will be caught”.
Despite, however, consistently delivering similar stern enforcement warnings since becoming Commissioner, the Bureau’s enforcement success has been a bit mixed in the past year – with some significant victories (many on the criminal side, such as record $5 million and $30 million bid-rigging fines) but also several significant setbacks (including losses on the civil side in the recent TREB real estate abuse of dominance case before the Competition Tribunal; Canadian credit cards merchant fees case; and recent misleading advertising challenge against Rogers).
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