Sunday, March 1, 2009

EU Competition Law and Public Affairs

Its a mystery to me why its so readily assumed by pretty much every-one in Public Affairs that lobbying has no place in supporting anti-trust files doing the rounds in Brussels and that anything to do with EU competition law is best left with the lawyers alone to deal with. That's why it was refreshing to see that from the lawyer's perspective, political engagement can be of enormous help to a company is the subject of a competition inquiry or is having to deal with DG COMP officials for whatever other reason. Of course, lobbying officials handling competition cases is a no-no but there are compelling reasons for building up political support and developing an understanding of your rationale.

Some of Brussels leading competition lawyers have written on this subject in the latest issue of Concurrences. They concuer that competition is as political as it is legal. Public Affairs brings some accountability to the process and a little transparency can ensure EC officials handle the case more carefully and diligently. Lobbying in the competition arena does require some sensitivity and it is important to know your audience and not over-do it but good lobbying can add practical understanding od the real-world effects made by the Commission and national competition officials.

The Court of Public Opinion is as instructive as the Courts of Law and lawyers increasingly recognise the importance of public affairs in support of their clients' case. Stephen Kinsella says its no longer enough to just defend the client in written submissions and closed hearings - publlic and shareholder perceptions of the case could alos have a significant impact. Kinsella says that many lawyers work in specialised fields and have a blind-spot when it come to other policy issues that will impact on a decision; not taking into account the officials from other Commission departments that have some knowledge and insight into the case. Public affairs consultants can give guidance on how to interpret messages from other DGs.

Kinsella says that there are many political elements to decision-making in antitrust cases. Sector-specific expertise is needed as is an understanding of national interests and even in some cases, engagement with MEPs can help. He reckons, "Consultants can be invaluable in helping put together a strategy and work out where some additional investment in time might pay off in influencing the outcome." Admittedly its sometime hard to identify which bit of your political engagement can have direct effect on the outcome but its generally felt by the legal profession in Brussels that it can add a great deal to the client's armoury or at least insure against a worst case scenario.

Philip Marsden notes that it is important to create a climate where the regulatory and political institutions are more receptive to the clients' business model. Officials in the EU institutions are aware that they live in a regulatory bubble - most have come straight from academia and have never worked in industry and so will welcome a better understanding of the real effects of their decisions.

In summary, the lawyers agree that while you should not attempt to lobby the officials dealing with the case or influence anyone who might put pressure on case handlers, it is a brave and foolish company that operates in Europe without
public affairs advice. Public affairs in the UK has traditionally developed alongside the PR market but in Brussels there is increasing need for skilled publc affairs advice to complement the legal sector. I have always thought it odd that lobbying in the EU anti-trust field has been so under-developed for so long.

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