Comms vital as tough new merger rules loom

Holiday plans trashed by the pandemic have meant many of us have had to cancel and rebook flights – or, worse, try to extract a cash refund, rather than a voucher, from our carrier.

Comms vital as tough new merger rules loom

Getting refunds is not always easy, and it is a struggle that recently led the Competition & Markets Authority (CMA) to issue a stern public reprimand to British Airways and RyanAir.

You’ve got to have some sympathy with those airlines, but this was clearly an issue where the CMA felt it could win a few brownie points with consumers.

The Authority lined up a series of populist priorities in its recent workplan – protecting consumers from pandemic-inspired rip-offs, fair prices for electric vehicle charging, and tackling promoting competition in digital markets.

It was also self-consciously looking forward to ‘taking its place as a global competition and consumer protection authority’ and ‘supporting a transition to a low-carbon authority’.

There’s nothing the CMA seemingly can’t do, but alongside these lofty aims, many experts have publicly and privately voiced concerns over competition authorities in many markets having mission creep.

In merger clearance, there are fears over transactions stalling as a result of theoretical economic zealotry and a failure to perceive the deeper public interest.

Bizarrely, some authorities, including the CMA, will discount representations made by third parties in support of deals if the regulators believes the party has been briefed. Some say this is a fundamental and unwarranted restraint of commercial freedom of expression.

But, even as the CMA leans into a mix of the home-spun, the world-changing and the deeply theoretical, a darker cloud is looming on the corporate horizon in terms of merger control.

The National Security and Investment Act 2021 became law in April and will come into force later this year.

Highly political and nationalistic, it gives sweeping powers to the Business Secretary and his officials to block corporate transactions in 17 key sectors – from advanced materials to transport – and including communications (do they mean us?).

Domestic and foreign investors must tell the Government about these transactions. Deals outside the 17 sectors – in any part of the economy – might still be caught and deal-makers can tell the Secretary of State ‘just to be on the safe side’. You can be fined up to five per cent of global turnover for non-compliance, and the UK Government reserves the right to call a deal in up to five years after the event.

These are – to coin a phrase – sweeping powers, and they go much further that the existing ‘public interest’ regime policed by BEIS.

It is easy to see how debates will rage in public and private over the exercise of the new, extended powers. It’s also plainly apparent that specialist corporate communicators will be sharpening their quills now in anticipation of the need to hone clients’ political arguments and public interest representations, if future deals are to surmount these high hurdles.

Jon McLeod is a partner and head of competition and anti-trust at DRD Partnership

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