The EU competition commission

Jonathan Faull explains the do's and don'ts of the European competition commission

Europe has been developing its competition (antitrust) policy since the 1950's. The European Commission is the institution responsible for investigating and deciding cases, subject to judicial oversight by the European Court of Justice. The European Union’s merger regulation is only a quarter of a century old.

But in that time it has gained a reputation as a complex but efficiently run set of rules, administered in coordination with the competition authorities of the member states of the European Union. Globally, competition agencies often look to Brussels for a lead in international M&A cases.

So it would be useful to understand the structures and a few do’s and don’ts for dealing with the European Commission. The political leader is the Competition Commissioner, currently Margrethe Vestager, former Danish Minister of Economic Affairs and the Interior. The department is known as DG Comp (short for Directorate General for Competition).

In all cases, companies involved in or seeking to challenge a merger will need specialist advice on law, economics and communications. Tell the truth and be prepared to provide compelling evidence.

Do demonstrate advantages for customers and final consumers; explain the expected positive impact on price, quality, innovation and employment; stress the competitive and expanding nature of the market; and present consistent legal, economic and communications cases across all jurisdictions.

Don’t forget that the EU is concerned to create or, where it exists, maintain a seamless single market across all its members. So don’t present national or regional markets within the EU as separate without very good arguments and evidence.

Wherever possible, refer to previously decided cases and Don’t present your case as requiring or representing a new policy departure.

However strong the pressure or temptation, Don’t claim that some other public policy goal you think you meet is more important than competition.

Don’t underestimate or antagonize the Commissioner or DG Comp.

Don’t indulge in personal arguments; you are addressing political leaders, highly trained lawyers and economists.

Don’t rely on political connections or personal relations to influence or accelerate the regulatory process.

Don’t use the media to make your case, but Do respond to their questions with a coherent narrative about your business and its prospects.

 

Sir Jonathan Faull is Chair of Brunswick's European Public Affairs team, and is based in Brussels. He was a senior official of the European Commission.

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