Companies potentially exposed to antitrust risks should implement a compliance and prevention programme. In the second category (abusive conduct of dominant undertakings), it is not uncommon to find dominant undertakings that try to consolidate their dominant position by refusing to supply customers, discriminating between trading partners in relation to prices or other conditions of trade or trying to impose unfair prices. Which sectors are more prone to falling foul of competition law? The COMCO places particular emphasis on key sectors, especially those that affect the infrastructure and basic services of the Swiss economy. It is therefore common for proceedings to be opened in the sectors of construction (especially the road construction sector), finance, telecommunications and health. However, more specific sectors – such as the French book market recently – may also be investigated by the COMCO. If a company falls foul of antitrust or competition law, what steps should they take? If a company finds – as a result of an internal audit, for instance – that it is participating in an agreement that is likely to be considered unlawful under antitrust law, it is worth considering whether it should initiate a so-called leniency programme by reporting the unlawful conduct to the COMCO. A leniency programme may lead to the avoidance of a financial sanction or to a substantial reduction thereof. Such a measure will be relevant if no proceedings have yet been initiated by the COMCO or if an investigation procedure has just started. If an investigation has already been initiated and it is too late to participate in a leniency programme or if the position of the COMCO is contested, the company will have to defend its position, in particular by making use of its procedural rights. In such a case, the lawyer’s role will also be to assess the legal risks and to reach, if necessary, an amicable agreement with the COMCO in order to settle the case and limit the costs of the procedure. From a preventive perspective, what can be done to ensure companies do not infringe on the current regulation? Companies potentially exposed to antitrust risks should implement a compliance and prevention programme. The starting point of any compliance and prevention programme is the identification of the existing antitrust risks (risk analysis). The risks can be identified either by the company's internal compliance department or by an external lawyer. It is also important to conduct regular training courses at an early stage with the company’s staff in order to develop a corporate culture sensitive to antitrust risks. Particular emphasis should be placed on the employees who regularly meet with competitors or who have any role in the company’s pricing policy. 56 LAWYERMONTHLYMARCH 2023
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