In sport it used to be said that it is not the winning that counts but the taking part. That approach to professional sport would now seem rather quaint, but the debate has been recycled somewhat in relation to antitrust compliance programmes. The question currently being debated is whether companies that in good faith invest in a compliance programme that they take seriously, should get some credit for doing so when they are ultimately fined for behaviour that the programme failed to prevent or detect.
Views on this question even within Europe are diametrically opposed. For instance the UK’s Office of Fair Trading (“OFT”) will now grant a reduction where it “sees evidence of a [...]