The Role of Corporate Compliance Systems in Preventing Antitrust Violations

Antitrust compliance systems are part of every company's compliance toolbox. It goes without saying that these systems must be effective and efficient. Or does it?

Against the backdrop of a recent decision by the German Federal Cartel Office (“FCO”), it has become clear that the mere existence of an antitrust compliance system does not necessarily guarantee compliance with antitrust regulations.

In its decision from May 7, 2025, the FCO imposed fines on Sennheiser and Sonova, as well as three senior employees, for violating the antitrust prohibition under Section 1 of the German Act Against Restraints of Competition ("ARC"). The authority – in conjunction with its Austri-an counterpart – had previously identified such a violation because the companies imposed cer-tain end consumer prices on their retailers and entered into prohibited price agreements with them. Sonova acquired Sennheiser's business division for the distribution of high-quality audio products (primarily headphones) in March 2022 and initially continued the infringements al-ready committed by Sennheiser since 2015, albeit to a lesser extent, until the authorities con-ducted a dawn-raid in September 2022.

The peculiar element of this case was that although Sennheiser and Sonova had implemented an antitrust compliance system, some employees exploited this system in a sophisticated way to engage in prohibited price fixing under the guise of compliance. Internally, a “code language” was used for the price maintenance measures, which referred to compliance with selective dis-tribution criteria.
In light of this case, the question arises as to how compliance systems should be designed in detail to – actually – prevent antitrust violations, to what extent the implementation of such systems can result in less punitive sanctions in the event of violations, and – especially for in-ternational companies – how regulations and official decision-making practices in this regard can differ across jurisdictions.

In this context, we will take a look across the big pond, discuss the new guidelines for the eval-uation of corporate compliance programs in the context of criminal antitrust investigations (the “Guidelines”) published by the US Department of Justice (“DOJ”) in November 2024 and will evaluate to which extent those insights may be applied to European and German antitrust regu-latory frameworks as well. The Guidelines provide a comprehensive framework for assessing the effectiveness of corporate compliance programs, particularly in preventing and detecting violations of US antitrust laws such as the Sherman Act. This article summarizes the main ele-ments of the new Guidelines. The key takeaways for in-house competition counsels are as fol-lows:

• The new Guidelines provide a valuable framework for setting up effective competition compliance systems (see sections A. and B.).
• Administrative procedures differ significantly by jurisdiction, e.g. while the DOJ and the German FCO may treat the existence of compliance systems as a mitigating circum-stance, this is not the case in proceedings before the European Commission (see sections C.).

A. Purpose and Scope

The Guidelines emphasize the importance of a robust antitrust compliance program in prevent-ing corporate misconduct and outline specific criteria for the evaluation of compliance pro-grams (during charging decisions and sentencing recommendations) – focusing on the pro-gram's design, implementation and practical effectiveness. While the DOJ will apply high standards, it will also consider the size and resources of the organizations concerned, expecting larger organizations to allocate more resources to their compliance programs than smaller or-ganizations. 

The Guidelines revolve around three fundamental questions that DOJ prosecutors should con-sider when evaluating the effectiveness of antitrust compliance programs:

1. Is the compliance program well-designed?
2. Is the program adequately resourced and empowered to function effectively (is it being applied earnestly and in good faith)? 
3. Does the compliance program work in practice?

In order for all three questions to be answered positively, the compliance program should ac-cording to the Guidelines address nine critical elements in sufficient detail and robustness.

B. Nine Elements of an Effective Compliance Program

I. Design and Comprehensiveness

• The program should be well-integrated into the company's business practices, it should be regularly updated and accessible to all employees. It should include clear guidelines for the retention of documents and for the use of electronic communication channels when conducting business.
• Companies should ensure that compliance materials are in writing and regularly updated to reflect the latest developments.
• Specific measures should be taken to reinforce antitrust compliance policies, such as tracking business contacts with competitors and monitoring attendance at trade association meetings.

II. Culture of Compliance

• Senior management must actively support and cultivate a culture of compliance. This includes setting the tone from the top, demonstrating commitment through actions, and ensuring personal accountability for compliance failures.
• Concrete actions by the senior leadership include participating in compliance training and making remediation efforts. They should model ethical behavior and avoid tolerating antitrust violations in pursuit of business objectives.
• Companies should regularly measure the effectiveness of their compliance cul-ture and take steps to address any identified weaknesses.

III. Responsibility and Resources

• The compliance program should be overseen by qualified personnel with suffi-cient autonomy, authority, and resources. Compliance officers should have direct access to the board of directors and should be involved in key decision-making as regards compliance.
• The compliance function should be comparable to other functions in terms of stature, experience, and resources. Compliance personnel should be dedicated to their responsibilities and should not have any conflicting duties.
• Companies should allocate sufficient resources to educate employees on antitrust law, focusing on high-risk areas and ensuring that compliance personnel have the necessary experience and qualifications.

IV. Risk Assessment

• The compliance program should be tailored to the company's specific antitrust risks in line with industry best practices, addressing emerging risks such as those associated with new technologies like artificial intelligence.
• Companies should conduct regular risk assessments and update their compliance program to reflect changes in the business environment, legal landscape, and technological advancements.
• Companies should collect metrics and information to help detect antitrust viola-tions, and they should evaluate these metrics to inform training and internal con-trols.

V. Training and Communication

• Employees should receive regular training on antitrust compliance. The training should be updated to reflect legal and technological developments and should in-clude mechanisms for employees to ask questions and report potential violations.
• Training should be provided to all relevant personnel, including senior leader-ship, and should be tailored to the specific risks and duties of different business units.
• Companies should ensure that training materials are easily accessible and that employees certify their completion of the training program.

VI. Monitoring and Auditing

• The compliance program should include mechanisms for periodic monitoring and auditing to detect and address potential antitrust violations. This includes the use of data analytics and other tools.
• Companies should conduct regular audits, both routine and unannounced, to en-sure compliance. They should use screening, communication monitoring tools and statistical testing to identify potential violations.
• Companies should have a clear process for reviewing monitored communications and acting upon any antitrust issues identified.

VII. Confidential Reporting and Investigation

• Companies should have a system for employees to report potential violations anonymously or confidentially without fear of retaliation. They should have clear procedures for investigating and addressing reported issues.
• The reporting system should be well-publicized, and employees should be en-couraged to report violations. Companies should analyze reports for patterns and take appropriate action.
• Companies should have an anti-retaliation policy and ensure that employees are aware of their rights under the Criminal Antitrust Anti-Retaliation Act (CAARA).

VIII. Incentives and Discipline

• Companies should have systems in place to incentivize compliance and disci-pline those who violate antitrust laws or fail to prevent violations.
• Incentives, compensation structure and rewards should be aligned with compli-ance objectives, and their implications for compliance should be considered.
• Disciplinary measures should be consistently applied, companies should com-municate the reasons for discipline to reinforce the importance of compliance.

IX. Remediation

• Companies should take remedial actions to address compliance failures and pre-vent recurrence. This includes conducting root cause analyses and revising the compliance program based on lessons learned.
• Companies should regularly evaluate the effectiveness of their compliance pro-gram and make any necessary adjustments to address identified weaknesses.
• Early detection and self-policing are critical, companies should therefore report violations to the government promptly to demonstrate the effectiveness of their compliance program.

C. Sentencing Considerations in the US and in Europe

The Guidelines further address how an effective compliance program can impact sentencing in case of an antitrust violation. Under the US Sentencing Guidelines, companies with robust com-pliance programs may receive reductions in their culpability score. There is however a rebutta-ble presumption that a compliance program is not effective if high-level personnel were in-volved in the violation. Sentencing reductions will not apply where instances of illegal conduct have not been reported to the government within a reasonable timeframe.

Comparable provisions apply under German competition law. Pursuant to Section 81d (1) sen-tence 2 no. 4 of the ARC, the assessment of fines depends, inter alia, on whether and to what extent appropriate and effective precautions to prevent and detect infringements were taken prior to the infringement. The participation of management personnel (such as directors or board members) in the antitrust violation will, according to the 2021 FCO Guidelines for the Assessment of Fines in Cartel Administrative Offence Proceedings, regularly preclude a reduc-tion in the fine.

This contrasts significantly with the approach taken by the European Commission. According to the Commission’s practice, the mere existence of a compliance pro¬gram will not be considered as mitigating circumstance in its decision on fines. According to the Commission, compliance programs should not be perceived as a tool for supporting the argument that fines should be reduced if the company is ‘caught’ (cf. European Commission,‘Compliance matters’, 2012). This stricter decision practice has been confirmed by a number of rulings of the General Court and the European Court of Justice (cf. Case C 501/11 P, para. 144). The recent case of Senn-heiser / Sonova lends some credibility to the Commission's approach, as the companies utilized the existence of a compliance system to conceal their antitrust violations. It seems to be prefer-able though for the authorities to have at least the option of considering a given compliance system when deciding on sentences.

D. Conclusion

The procedural fragmentation across jurisdictions presents a challenge for companies in terms of legal certainty and predictability. This makes it even more important to ensure that existing compliance systems are robust and effective to prevent competition law infringements from happening in the first place. 

In this regard, the DOJ's updated Guidelines provide a detailed roadmap for the evaluation of existing antitrust compliance programs – also for companies outside the US. Organizations should ensure that their compliance programs align with the Guidelines to mitigate risks and demonstrate a commitment to ethical business practices.

The Guidelines are available here for further reference.

The FCO’s press release regarding the Sennheiser / Sonova case can be found here.