1. Competition and communication:
to the rescue of fragile competitive markets
by Julia Harrison, Managing Partner, FD Blueprint
20 l0 is shaping up to be a fascinating year in the EU and nowhere more so
than in competition policy. Having got used to a fairly omnipotent position
ruling on headline grabbing merger and other transactions, with a few
exceptions the last l8 months have seen a complete reversal of focus if not
fortune for EU competition authorities.The objective of competition policies
is to make markets work well for the benefit of consumers and business.The
generally accepted principle has been that the market economy is the most
effective way to provide consumers with goods and services at the best
conditions, in terms of price, qualit¡ choice and innovation and the theory
goes that it is the enforcement of antitrust, cartel and state aid rules that
leads to the realisation of effective markets.
During the economic crisis the competit¡on entwined. lndeed competition policy is becoming
spotlight switched from review of proactive private integrated with and subject to more visible
sector and market machinations to reactive public interconnections with a range of other policy areas,
sector attempts to support and bail out struggling These links and cross references have always existed
businesses and prop up markets, particularly in the subtly and in the EU legislative framework, Since the
financial services sector.The crisis has emphasised pressures on competition policy during the
that, at EU-level at least, competition decisions are negotiation of the Lisbon Treat, howeven and given
made on the basis of three not two analytical the new reality of a suddenly and very publicly
perspectives: regulatory/legal; economic and shocking complex financial crisis, the pressure on
markets; and thirdly the elephant in the room: competition regulators, public authorities and
politics, political figures to be publicly more engaged in a
Political communication has become an essential dialogue far wider than the purist regulatory one
aspect of the competition fìeld; for governments in has increased enormously, No one is suggesting
need of protecting their political credibilit¡ but that competition rules are being abandoned, but
more importantl¡ for companies needing to argue this does mean a much greater effort to
their case and counter increasing public criticism. communicate and explain the interrelationship
Business, particularly in the financial sector, now has between regulatory or economic aspects and softer
to respond to much greater public scrutiny on the political interests.
one hand and to political and regulatory pressures Functionall¡ the new Competition Directorate
on the other. sees itself working much more closely with the
other DGs to establish a more coherent approach
Economic crisis, recovery and the to policy formation where antitrust/competition
treaty drive linkages with other rules are aligned with wider interests not opposed
policy areas to them.The aim of this renewed cooperation is not
As 2010 sees the beginnlngs of the EU drive just to achieve competition-friendly decisions in
towards recovery, the year has started with a cases which arose through crisis distress, but also to
confluence of factors which further underline just establish three key thingsl fìrstly the competitive
how political communication and publlc affairs have conditions for post crisis growth in key horizontal
become central to the EU competition dynamic, areas such as online commerce; secondly conditions
The non-descript Llsbon Agenda has been which recognise the increased importance post
replaced by Europe 2020 as the EU's agreed path to crisis of protecting the consumer; and thirdl¡
recovery from the reality of 23 million unemployed, conditions which more effectively regulate particular
public defìcits at over 7% of GDP and sectors such as financial services in the post crisis
unprecedented levels of public debt, ln this hard world,With these links to other central policy areas
realit¡ competition regulation and competltiveness and more public objectives comes a greater public
pollcy are due to become ever more closely requirement to explain and communicate the role of
lD

2. competit¡on policy. A new onus will be placed on Financial serv¡ces regulation and the
DG Competition to communicate beyond its usual wider compet¡t¡on context
limited legal and regulatory audience and to explain One of the hottest dossiers now on the table is of
its critical role. course financial regulation, including the
Commission's proposals on hedge funds,financial
A new European Commission supervision and updated capital requirements, Most
ln February this year Joaquín Almunia, a social importantly for the competition world, it is crucial
democrat who was previously Commissioner for that these regulations export the principles of open
monetary and economic affairs,took up his position and fair competition to encourage the creation of
as Commissioner in charge of competition. He is an strong business models.With a visible conflict
assiduous Spanish politician who knows his way between Member States and the somewhat isolated
around the European institutions perfectly and is position of the UK, there has been a surfeit of very
known for tackling countries' deficits and putting vocal communication in some quarters and not all
large countries under the grill, a perlect background to good effect. ln an area so complex that even
for the challenges of economic recovery. officials complain of the lack of expertise and
ln his first speech as Competition Commissioner resource to 8et to grips with dossiers, how financial
on February l5 and repeated many times since, services businesses communicate and advocate has
Almunia has underlined that his top priority remains never been more important.
the same as in his previous mandate of economic No one is disputing the need to restore
and monetary affairs: overcoming the financial and confidence and stability in fragile sectors and to
economic crisis in the short term, and ensuring redress the regulatory environment in the fìnancial
that European citizens and businesses achieve a services area.Although initially markets did mistakenly
balanced growth in the long term, Promoting think they could argue for a return to business as
competitiveness and creating iobs. Almunia sees usual/'light regulation' this was quickly abandoned'
Competition policy as a fundamental tool for Restructuring and enhanced regulation are seen as
achieving these goals inextricably linked with wider complementary routes leading to the same economic
com Pet¡tiveness. recovery objective.This is how the Commission
At the same time Almunia has explained that a presented its 2009 Communication to the European
"reasoned and effective" application of competition Council on'Driving the European Recovery', which
rules is the best possible encouragement for put in place a framework and guidelines covering
companies to abide by them."And this application is restructuring of financial market regulation, The
no less important in periods of economic crisis such Commission insisted on ensuring that any future
as that wh¡ch we are experiencing today", adding regulatory initiative in the fìnancial sector - whether
that the harm caused by violations at such t¡mes at global or European level - should take account of
was even more significant.Although it is typical to competition principles to enable bâfrks to comPete
set a tough line at the outset,Almun¡a does seem successfully w¡thout state aid and re'establish market
determined to follow this line; and as one of trust and confìdence in the financial system,The way
European Commission President José Manuel forward in communications terms for the sector
Barroso's most trusted allies, his appointment must lie - along with the need to explain some very
underlines the importance attached to cracking sophisticated concepts and mechanisms - in
down on any signs of protectionism or flouting of embracing the context of the wider comPetitiveness
EU competition rules. agenda and demonstrating the value and contribution
Although European Commissioners are meant to of the sector not ¡ust to those working inside it, but
be impartial to national influence, one fact of EU to the competitiveness of the wider economy and the
political life is that all Member States recognise the stabil¡ty of our wider society.The confluence of
kudos of managing a major portfolio, at EuroPean sector positioning and competitiveness objectives
level.The competition post is seen as one of the toP should be helpful in this resPect.
jobs for Member States to secure, Previous
Competition Commissioner Kroes who lead a A new European Parliament
tough competitive battle is a hard act to follow. 2009 was decisive for the European Parliament as
Beginning his term with the high profile the new European Members of the Parliament were
announcement of the investigation into Google and elected or re-elected in June, Support for the
sensitive issues such as the review of vertical majority centre-right Parties held stead¡ while
restraints certainly indicates Almunia's bold and overall the Socialists, though still the second-largest
determined approach from the outset, group, were much diminished, Due to a number of
(D

3. scandals involving power and parliamentary- merger in the UK, and the Commerzbank/Dresdner
expenses, several MEPs were punished and there merger in Germany - fell under the jurisdiction of
were significant protest votes for far-right part¡es (in national competition authorities. Mergers in general
the Netherlands, UK, Hungar¡ Finland,Austria, have declined due to liquidity issues and the
Denmark, Greece, ltaly and Slovakia), who increased difficulty in raising finance.The Commission,
their representation with vows to close borders, therefore, has sought to show flexibility and
evict immigrants or dismantle the EU, adaptabilit¡ react¡ng as quickly as possible as
With the success for the centre-right majority it competition authorities are forced to be more
is hoped that there will be a more sympathetic creative in thinking about appropriate remedies.
hearing for industry for some of the financial DG Competition confirmed that, where applicable, it
services legislation which is currently under would also take into account the so-called'failing
consideration in the European Parliament, On the firm defence', which permits the clearance of a
much debated AIFM the EP is thought to be the best merger to keep the company from going under, by
hope for a balanced outcome,This is however by no accepting that a failing company may be acquired in
means certain given the ascendancy of consumer order to save it from total collapse.Traditionall¡ the
policy and public interest in most areas of legislation Brussels regulator has been reluctant to accept such
currently.The role of sensitive and appropriately arguments and in the past such mergers would not
timed communication and of the underlying have been cleared.
rationale of some of the competition arguments will When M&A activity picks up again, not only in
play a crucial role balancing the instinctive anti- the financial sector, but also in other areas of the
market sentiments that can ar¡se at times in the EP economy where the effects of the crisis may result
in certain forms of consolidation, there will be new
lmpact on competition policies of challenges and decision makers will have to
financial cris¡s recalibrate judgements as to what level of economic
The financial crisis continues to influence many of stability has been reached and what impact likely
the forthcoming EU policies and in turn impact high levels of consolidation and deal flow will have
enforcement, particularly of competition policy and on recovering markets.The crisis will continue to
particularly in the fìnancial sector, impact the way EU decision-makers go about
At an early stage in the crisis Member States enforcing competition policy and we can expect
clutched at State Aid DG Competition and with to see ongoing domestic political manoeuvring,
exclusive competence to examine cases it suddenly some of which will be successful. Companies and
found itself swamped, nat¡onal governments will have to ensure the
ln the banking sector, DG Competition made it a broader political and economic risks are fully
principle to ensure that competition between banks taken into consideration, Competitors or other
in different Member States and between banks that interested pârties w¡ll increasingly call on collateral
had different risk profìles was safeguarded,At the political influencers - either via public affairs or
same time, a rapid response to Member State communication mechanisms - to influence decision-
measures for individual banks and national schemes makers in their assessment of competition cases,
to support the banking sector was indispensable to The role in merger approval processes of both
provide legal certainty and help restore financial economics, already increasingly important - witness
stability, Highly political discussions with Member the growth in the chief economist's office in DG
States during the approval period were intensified Competition - and of communications of the wider
and time spans concertinaed in some cases to context of a deal will increase significantly.
almost overnight in order to enable expeditious Companies and legal advisors currently take differing
decisions. Post this intense period it is easy to forget approaches to the EU when seeking approval from
the pressures of the time, However, the subsequent DG Competition, Some integrate media and political
impacts of the state aid decisions will be seen for communication or public affairs outreach from the
quite some time and re-establishing the recovery outset - particularly in the more high profile
level playing fìeld will be a task that will require the transactions, others restrict input to Phase ll when
careful consideration and application of enforcement the involvement of the wider College of
across the full range of competition measures, Commissioners in the decision dictates
On the merger side, DG Competition has complementary outreach beyond DG Competition,
recently been confronted with a rather limited Moving forward, however, the wider communication
number of cases directly related to the financial of societal as well as economic value of deals; the
sector. Some mergers - such as the LloydsiHBOS public affairs engagement with a broader range of
(Ð

4. regulatory and above all political stakeholders foreseeable future there will be intense political
beyond DG Competition; and, the integration of interest and scrutiny in investigations and
political messaging alongside investor and capital competition cases of all sorts.These will be assessed
market communications, will undoubtedly make a beyond the purely jurisdictional sphere of the
significant difference to successful outcomes. competit¡on authorities both politically and in the
So how should companies cope with the crisis court of public as well as investor opinion. More
environment, the new institutions, the changing than ever, competition cases will be dependent on
pressures and influencing factors outlined above in the economic context, regulator¡ institutional and
the face of the new and highly impactful regulatory political environment.
environmentf Two basic rules apply: first refresh 2010 will demand from companies a wider
communication channels in order to secure new perspect¡ve, sensitive and increased communication
political allies amongst newly appointed around competition and antitrust issues, particularly
policymakers.Think more broadly beyond the tactics in the fìnancial world.
and themes of particular issues and regulatory
arguments - communication of the broader Author:
engagement and contribution of companies, while Julia Harrison, Managing Partner
often the first thing to be cut in economic FD Blueprint
downturns, has never been more important in the Avenue desArts 58
EU and regulatory context. 1000 Brussels
Typically companies develop crisis communications, Belgium
lR and capital markets strategies and think less Tel: +32 (2) 289 0946
about'soft' or political communication. ln the new ¡¿¡1;+32 (2) 513 0577
regulatory environment and expanded forward role Email: julia.harrison@fdblueprint.eu
of competition policy in the wider context for the Web: www.fdbluepri nt.eu
(@