For Europe's Competition Commissioner Neelie Kroes, it doesn't matter if you're Microsoft, Heineken, AstraZeneca or Peugeot–if you break the rules, you will pay dearly. It also doesn't matter to her if you are a small thread company from Holland.

On Sept. 15, 2005, the competition commissioner levied a $608,000 fine against Bieze Stork BV for participating in a scheme with other thread makers to fix prices and exchange information on prices charged to individual customers. After fining the companies involved in the cartel a total of $51 million, Kroes released the following statement:

“Cartel behavior is illegal, unjustified and will be punished no matter how large or small the companies involved.”

The problem for many companies–especially smaller ones such as Bieze Stork–is that European competition laws are complex and often differ in both substance and enforcement from one country to the next. As a result, it's not uncommon for employees to unknowingly put their companies at risk. And that's where the legal department and a robust compliance program come in.

“Competition issues are too risky for the legal department not to be involved,” said Trevor Soames, managing partner of Howrey's Brussels office and a participant at a recent Martindale-Hubbell Counsel to Counsel Forum in London. “The penalty of compliance failure may be the death of the corporation.”

According to Soames and other participants at the forum titled “Best Practices in Approaching Transatlantic Competition Regulations,” the key to a successful compliance program is a combination of training employees and conducting audits to ensure compliance. Both in-house lawyers from major international companies and European law firm lawyers participated in the forum.

Getting Smart

Much of the discussion among forum participants focused on employee training–not an easy task for a European company with offices spread out around the continent. In addition to having to deal with multiple locations, European companies have the additional problem of creating training programs and policies that work under both EU law and regional competition laws. Although most forum participants believed that Web-based training was the most efficient way to teach employees about competition law, they didn't consider it the most effective. The best approach, participants said, was to have face-to-face meetings with employees in each regional office.

“It is important to create an atmosphere and an environment where employees feel they can freely and confidently raise questions, discuss the issues and share information with the attorneys,” said Andrea Appella, vice president and associate general counsel for Time Warner Europe. “You need employees to give you feedback.”

It also helps to develop practical training that helps rather than hinders the ability of business folks to do their jobs. “It is important that business people understand that they can actually continue to be good sales people and reach their targets even when they have to follow antitrust rules,” said Riccardo Celli, partner at O'Melveny & Myers in Brussels.

Although it isn't cheap to set up training programs and shuttle in-house lawyers all over the continent to conduct training, it's money well spent.

“Bear in mind that it is not just the cost of legal fees to defend yourself during an investigation,” Soames said.

Uncovering Wrongdoing

Because a violation of competition law can carry both fines for the company and jail terms for executives, it also is important to develop a system to ensure that compliance training is working. One simple solution is to test employees at the conclusion of training. It also helps to have meetings with some of the key players following the training to learn about the challenges employees are facing in the field.

“This will give you a better chance of actually discovering what might be going on,” said Marleen Van Kerckhove, partner at Arnold & Porter in Brussels.

For companies that are especially vulnerable to regulatory oversight–companies that, for instance, operate in industries that have had cartel-related problems in the past–it may be in their best interest to conduct mock dawn raids. Competition regulators in Europe can raid a company's premises without notice and search and seize documents. Ben Keisler, executive vice president and general counsel of Anglo American plc, a British mining and natural resource company, occasionally has outside counsel conduct mock raids for him in the company's European offices to gauge the company's preparedness.

“Right before we arrive we will advise the director of the office that it is a mock raid so that he doesn't contact anyone outside the company such as the press,” he said.

After the raid is complete, Keisler then informs the employees about what they found and what the consequences would have been had the raid been real.

“Upper management is very supportive of the practice because it allows us to get higher levels of compliance and also higher levels of understanding of how employees will respond during a real raid,” Keisler said.

Ultimately though, most participants agreed that document searches and mock raids rarely turn up evidence of wrongdoing. Conversations with employees are the most effective way to uncover problems. As a result, the lawyers should create an environment in which employees understand that the goal of the audit is not to punish anyone for making a mistake, but rather to uncover a wrongdoing before regulators do.

“It is rare that a person is doing something wrong on purpose,” said Charles Gustafson, associate general counsel of Caterpillar UK. “Most likely they are doing something wrong out of ignorance.”

Pushing Back

That's also why in-house lawyers should focus on building relationships with employees. “In-house lawyers often work too much in isolation,” said Wolter Kymmell, general counsel of Flexsys Coordination Centre NV.

When the lawyers are close to the business, employees are less inclined to resist compliance training. When there is significant pushback, however, companies may want to consider linking the compensation of managers to training goals. If employees under the manager haven't completed the training, that manager's year-end bonus and raise structure is adjusted accordingly.

The best way to ensure that employees are taking the training seriously however, is to have the CEO deliver the message that compliance is important to the organization.

“You need to get the active involvement, support and communication from senior management, in terms of both participating in the training and explaining to employees that it is important,” Appella said. “It has to be clear that it is something senior management endorses and takes very seriously.”