Financial crisis , Regulation and Antitrust - PowerPoint PPT Presentation


Title: Financial crisis , Regulation and Antitrust


1
Financial crisis , Regulation and Antitrust
  • Frederic Jenny
  • Chair OECD Committee
  • Professor of Economics ESSEC

CIRC Conference on Revisiting the Global
Experience with Economic Regulation, New Delhi,
April 19th and 20th 2011

2
Issues
Measures adopted by governments in a period of
crisis 1) Measures aimed at restoring
confidence in financial markets and ensuring the
stability of financial markets. 2) Extending
the reach of regulation in the financial
sector 3) Measures aimed at preventing the
extension or the deepening of the economic crisis
in the real sector. 4) Protectionist
measures The role of competition authorities in
a time of crisis 1) Interventions of
competition authorities in the regulatory
process 2) Possible enforcement adjustments in
a time of crisis 3) Possible agenda for the
post-recovery period Conclusion
3
Short run and long run consequences of the
financial and real crisis for antitrust
Two different questions 1) How is antitrust
going to be affected during the crisis (a
period of retrenchement) 2) What is the
antitrust world going to look like after the
crisis (a return to business as ususal ? The
emergence of a new paradigm ?)?
4
Measures adopted by governments in a period of
crisis
  • Measures aimed at restoring confidence in
    financial markets and ensuring the stability of
    financial markets.
  • -Injections of liquidity into financial markets
    by central banks
  • -Issuances of short and medium-term debt to
    assist banks, credit
  • institutions, pension funds or insurance
    companies to overcome a
  • temporary liquidity shortage
  • -Government guarantee of financial institutions
    liabilities
  • -Regulatory capital forbearance,
  • -Recapitalization of banks and insurance
    companies.
  • -Carving-out of insolvent banks bad loan
    portfolios (usually
  • accompanied by organizational restructuring of
    the banks)
  • -Restructuring of the banking and financial
    sector in order to
  • increase the stability of these sectors.

5
Preventing an outright collapse of the financial
system
After September 2008 EU Member State
governments, together with the Commission,
spelled out the principles and objectives for a
coordinated approach to tackle the crisis. Rescue
packages for national banking sectors were
rapidly set up, in line with the guidance swiftly
provided by the Commission on the design and
implementation of State aid in favour of
banks. Between October 2008 and July 2009 , the
Commission has approved a total of over 3½
trillion (almost one-third of the GDP) of State
aid measures to financial institutions. So far,
EUR 1½ trillion (13 of GDP) have been
effectively used under the four main headings of
debt guarantees, recapitalisation, liquidity
support, and treatment of impaired assets. The
main rationale is to ensure that rescue measures
can fully attain the objectives of financial
stability and maintenance of credit flows, while
minimising competition distortions and negative
spillovers of public interventions between
beneficiaries of aid in different Member States,
between beneficiaries with different risk
profiles and between aid beneficiaries and banks
that do not benefit from aid.
Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
6
State guarantees on bank liabilities
They represent the largest budgetary commitment
among the aid instruments, with EUR 2.9 trillion
(25 of EU GDP) of approved measures, out of
which EUR 1 trillion (8 of GDP) have been
effectively granted. Set up as an immediate
response to the drying up of liquidity in the
interbank market in the early days of the crisis,
their aim was to provide a timely solution to the
lack of confidence and remedy the liquidity
squeeze and its wider consequences. Member
States have typically chosen to provide such
guarantees in national schemes, with a time
limited window during which banks could make use
of them. The main potential source of negative
spillovers of such measures, which could also
jeopardise their effectiveness, was the danger of
large flows of funds between Member States in
search for the highest level of protection.
Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
7
State guarantees on bank liabilities
In order to avoid such arbitrage, the Banking
Communication of 13 October 2008, together with
the ECB recommendations on pricing of government
guarantees, provided conditions with which any
national guarantee on banks liabilities would
have to comply. - They need to be open to all
banks, including subsidiaries of foreign banks
established in a Member State without any
discrimination -they can cover liabilities
longer than 3 months lasting up to three years
(subsequently prolonged. Some Member States
also chose to provide other liquidity and bank
funding support, totalling over EUR 300 billion
(3 of EU GDP) of approved measures, of which the
bulk has been used.
Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
8
Example the Irish bank guarantee scheme
On 2 October 2008, following a crash in the value
of bank stocks on the Irish stock exchange, the
Irish Government decides to grant an unlimited
guarantee on all bank deposits at its six main
banks for the next two years, to maintain
financial stability. The Irish guarantee scheme
does not underwrite the non-Irish banks which
were competing with the Irish Banks, thus
creating a potential domestic competition
problem. It triggered a cross-border flow of
cash from British businesses to Irish banks
making the British banks more fragile The
British Government denounced the discriminatory
and anti-competitive nature of the Irish scheme.
The European Commission forced the Irish
Governement to amend its scheme and to provide
coverage of banks with systemic relevance to the
Irish economy (not just Irish banks).
9
Recapitalisation of banks in the EU
  • . The Commission published the Recapitalisation
    Communication of 5 December 2008 (European
    Commission 2008c) guiding the design of
    recapitalisation of banks by Member States.
  • The main principles that limit the competition
    distortion of these structural and
  • lasting interventions are
  • (i) the price that the beneficiary has to pay for
    State capital, which depends on the risk profile
    of the bank and the seniority of the instrument
    used, and
  • (ii) the follow up required from the bank, which
    can go from an exit strategy from reliance on
    State capital for fundamentally sound banks to
    in-depth restructuring or liquidation for
    distressed banks.

Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
10
Example the recapitalization of Northern Rock
In August 2007, the British Government announces
various public support mechanisms to support
Northern Rock Plc bank and the bank is taken into
temporary public ownership (TPO) in February
2008. The Office of Fair Trading points out
that in the personal current account, savings and
investment product markets, consumers concerned
about the stability of banks might choose
Northern Rock because it was the only bank with a
100 per cent deposit guarantee. The OFT also
worries that Northern Rock might be able to take
advantage of a lower cost of capital in money
markets to offer lower rates on its mortgages.
This could lead to an adverse impact on
competition that may in turn lead to consumer
harm. The Northern Rock Restructuring Plan
issued in March 2008 includes commitments by
Northern Rock to minimise risk of competitive
distortions. It will not promote its offering on
the basis of Government guarantee arrangements,
nor will to sustain a prolonged market
leadership in any product category and to
maintain market shares at well below historic
levels.
11
Treatment of impaired assets
On 25 February 2009,the Commission (European
Commission 2009g) provided guidance for the
treatment of impaired assets. Irrespective of the
design of the asset relief measures, be it as
purchase, guarantee, or a hybrid, it requires
full transparency and disclosure from beneficiary
banks, adequate burden sharing between the State
and the beneficiary, and prudent valuation of
impaired assets based on their real economic
value both in the base and stress
Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
12
Other measures the merger between LLoyds TSB and
HBOS
In September 2008 the UK government engineers
acquisition of HBOS Plc by Lloyds TSB. The
Office of Fair Trading reports that Lloyds TSB
would then have a share of 33 on the market for
personal accounts and 28 of the U.K. home-loan
market and that the collective share of the big
four UK banks would rise from 67 to 80. It
states that there is a realistic prospect that
the anticipated merger will result in a
substantial lessening of competition in relation
to personal current accounts, banking services
for small and medium sized enterprises and
mortgages. On 24 October 2008, an amendment to
the UKs merger control rules introduced a new
public interest consideration to be weighed
against the consideration of effect on
competition maintaining the stability of the UK
financial system and the merger is approved on
31 October 2008
13
Importance of competition in the financial sector
in a time of crisis
  • Complement of stimulus packages (distribution of
    credit)?
  • Passing on of decrease in refinancing rates (
    cheaper credit)?
  • Financial innovation ( allowing savings to be
    directed into the most productive capital
    investments).
  • Those objectives are unlikely to be achieved
    unless there is a sufficient degree of
    competition between financial institutions

14
Independent Commission on Banking in the UK
Interim Report
() UK retail banking needs to be more
competitive. The damage to competition done by
the crisis will not be remedied by the
divestitures of RBS and Lloyds assets required by
the European Commission. But now there are
opportunities to make competition work better for
customers. First, the Lloyds divestiture could
be strengthened to create a more effective
challenger to the incumbent banks. Second, the
ability of customers confidently to switch
between banks could be greatly improved. Together
with better conditions for customer choice, this
would make banks compete more effectively to
deliver what customers want. Third, current
reform of UK regulatory institutions must ensure
that effective competition can at last be a
central force in UK financial regulation. The
Commissions current view is that all three
opportunities to promote competition should be
seized.
1) Sir John Vickers, April 11 2011
15
Possible toxic effects of direct interventions
in the financial sector
  • Distorsion of incentive leading operators to
    deviate from profit maximizing behaviour
  • Distortion of competition (aided financial
    institutions can prevail over possibly more
    efficient unaided competitors)?
  • - Unnecessary lessening of competition (
    particularly in the area of mergers)

16
Conclusion
Measures aimed at restoring confidence in
financial markets and ensuring the stability of
financial markets are often discriminatory and
anticompetitive and they may also impact
competition in the real sector (ex Farm
Equipemnt in the US). In some cases the NCA is
not consulted ( ex Irish Bank Guarantee Scheme,
Farm Equipment in the US) in other cases the
NCA is consulted either successfully (ex
Northern Rock bail out) or unsuccessfully (ex
Lloyds Plc/ HBOS merger) The EC Commission has
some power to force Member States which take
discriminatory or anticompetitive measures but is
powerless to intervene in some other cases (
exthe Lloyds Plc/ HBOS merger).
17
Measures adopted by governments in a period of
crisis
  • 2) Extending the reach of regulation in the
    financial sector
  • - Strengthening of prudential regulation of
    financial institutions
  • - Regulation to limit the growth or the
    diversification of banks
  • - Regulation of new players on financial markets
    ( hedge funds , for example)
  • - Regulation of new financial instruments ( CDOs,
    for example)
  • - Regulation of incentives for executives in the
    financial sector (bonuses, golden parachutes,
    stock options)
  • Regulation of Credit Rating Agencies
  • Modifying accounting rules ( mark to market)
  • Extending the reach of regulators ( international
    cooperation)?

18
Independent Commission on Banking in the UK
Interim Report
First, we estimate that systemically important
banks should have an equity ratio of at least 10
provided that they also have genuinely
loss-absorbing debt. We believe this should be
agreed internationally. But whether or not it is,
we believe that it should apply to UK retail
banking. Then international standards would apply
to the wholesale and investment banking
activities of UK banks, so long as the taxpayer
is not on the hook if they fail. Second, and in
structural support of that approach to capital,
the Commission sees merit in a UK retail
ring-fence. This would require universal banks
to maintain the UK retail capital ratio that
is, not to run down the capital supporting UK
retail activities below the required level in
order to shift it, say, to global wholesale and
investment banking. Our current view is that such
a limit on banks freedom to deplete capital
would be proportionate and in the public
interest, and would preserve benefits of
universal banking while reducing risks. Without
it, capital requirements higher than 10 across
the board might well be called for.
1) Sir John Vickers, April 11 2011
19
Example regulating the credit rating
agencies (CRAs)
Ensuring that CRAs give accurate assessments of
the risk quality of assets is crucially important
for investors, firms seeking financing, regulated
firms such as banks which are constrained in the
kind of risky assets they can hold and regulators
who rely on CRAS assessments. Reasons to doubt
that competition is strong and that it will
eliminate CRAs giving poor quality credit rating
(high concentration, necessity for regulated
firms or other firms to get credit rated leading
to low price elasticity of demand, possible
conflicts of interest when CRAs also sell other
services, possible collusion between CRAs and
clients). Alternative solutions with different
competitive impacts include self-regulation,
transparency requirements and best practices,
regulation, modification of regulatory agencies
reliance on assesments of the Big Three, creation
of public rating agencies etc..
19
20
Possible toxic effects of regulations
  • Ineffective regulations (loopholes, electricity
    regulation and Enron, financial regulation)?
  • Regulations which distort incentives in
    unexpected ways
  • Regulations which unnecessarily restrict/ distort
    competition (telecom regulation after the breakup
    of ATT)?
  • -Regulations which impair innovation ( see
    Greenspan)
  • Hence necessary cooperation between sectoral
    regulators and competition authorities for the
    design of appropriate regulations

21
Conclusion II
Regulatory proposals for the financial sector can
have serious implications for competition. There
is a large number of such proposals being
considered now following the G-20 meeting of A
lot of these proposals are drafted by financial
authorities or rgulators without input from
competition authorities and it is far from sure
that competition issues are even considered to be
relevant by the drafters
22
Measures adopted by governments in a period of
crisis
  • 3) Measures aimed at preventing the extension or
    the deepening of the economic crisis in the real
    sector.
  • Stimulus packages including
  • Direct aid to ailing business firms or small and
    medium size firms which are collateral victims of
    the credit crisis
  • -Subsidized interest rate for certain types of
    firms
  • -Sectoral aid designed to boost demand in
    specific sectors.

23
Fiscal stimulus The European Economic Recovery
Plan (EERP)
Stimulus package Endorsed by the European Council
in December 2008. The Plan aimed to provide a
framework for a coordinated crisis control
policy, while also laying down guidance on
principles governing the measures taken at
national level. Size The Plan originally
totalled 200 billion, or 1.5 per cent of EU GDP
in 2009, to boost demand while respecting the
Stability and Growth Pact. It was made up of a
budgetary expansion by the Member States of 170
billion and EU funding to support immediate
actions of about 30 billion. Total spending
has been greater than initially foreseen,
however, with outlays amounting to 1.4 per cent
of GDP in 2010 in addition to the 2009
stimulus. In line with the principles set out in
the Plan, many Member States have adopted or
announced significant fiscal stimulus packages to
promote investment, support households
purchasing power, help enterprises and sustain
labour markets.
Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
24
Supporting viable businesses The European
Economic Recovery Plan (EERP)
Stimulus package The EERP recognised the need for
public intervention to support viable businesses
during the crisis to ease financing constraints
facing and to support specific credit services
(e.g. export credit insurance) which markets were
temporarily unable to provide, at least at
economically viable conditions and prices.
Beyond the aggregate demand support provided by
macroeconomic instruments, there may also be a
case for temporary government support targeted at
sectors where demand has been disproportionately
affected by the crisis and could cause important
dislocations. Temporary public support could
help prevent unnecessary and wasteful labour
shedding and the destruction of otherwise viable
and sound companies. These measures will help
contain the negative effects of the crisis on
potential output by preventing a permanent loss
of knowledge and skills and a reduction of
productive capacity far beyond what would be
expected during a normal cyclical slowdown.
Finally, there may be instances, where
government support on the supply side is
warranted for sectors and business where there
are technological or other spillovers benefits to
the economy.
Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
25
Supporting viable businesses The European
Economic Recovery Plan (EERP)
Stimulus package The March 2009 Commission
Communication "Driving European Recovery" set out
a number of guiding principles for actions to be
taken by Member States in support of businesses,
among which were the following -Maintaining
openness within the internal market, continuing
to remove barriers and avoid creating new
ones. -Ensuring non-discrimination by treating
goods and services from other Member States in
accordance with EU rules and Treaty
principles. -Targeting interventions towards
longer-term policy goals facilitating structural
change, enhancing competitiveness in the long
term and addressing key challenges such as
building a low carbon economy. -Sharing
information and best practice. -Pooling efforts
and designing measures so that they generate
synergies with those taken by other member
states. Stronger co-operation at European level
is key in this respect. - Keeping the Single
Market open to trading partners and respect
international commitments, in particular those
made in the WTO.
Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
26
Assessing support for businesses measures in The
European Economic Recovery Plan (EERP)
Stimulus package Support for businesses sectors
under the EERP has been provided both on the
demand and the supply side (state aid). Most
Member States have put in place horizontal
frameworks that allow policy support to be given
to sectors that are most affected by the crisis
(e.g. cars, tourism, construction), and, as a
general rule, these seem temporary, targeted and
timely. However, there is considerable
variation across Member States in terms of the
support actually provided. Also, the
effectiveness of national schemes for industries
operating across the entire internal market could
be somewhat limited. Should schemes need to be
maintained beyond the year end then there would
be a clear case for more coordination at the
European level.
Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
27
The European Economic Recovery Plan (EERP)
  • Stimulus package
  • The national plans have generally been targeted
    on policy areas identified in the Plan
  • - about 39 per cent of the stimulus has been
    directed towards supporting
  • households purchasing power (including
    vulnerable groups),
  • 16 per cent to supporting labour markets,
  • 20 per cent to investment activities, and
  • 25 per cent as support to businesses.
  • About two thirds of support measures are
    temporary.

Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
28
Example the introduction of discriminatory
provision in the US stimulus package
The American Recovery and Reinvestment Act
(ARRA) adopted in February 2009 included a
provision which required the use of US produced
steel, iron and manufactured goods in public
works funded by the ARRA, subject to certain
exceptions (public interest, non-availability or
unreasonable cost). A second provision required
the Department of Homeland Security to procure US
manufactured textile and apparel goods.
Following President Obamas intervention, the
ARRA requires that these provisions be applied in
a manner consistent with US obligations under
international agreements. Further, Congress has
indicated that the "buy American" provision for
iron, steel and manufactured goods is not
intended to apply to LDCs. However, US state
and municipal governments will be able to impose
restrictions on the origin of steel and
manufactured goods in procurement markets.
29
Examplethe introduction of discriminatory
provision in the Chinese stimulus package
China also adopted a large stimulus package (
worth US 586 billion) at the end of November
2008. A notice issued by several central state
agencies including the powerful National
Development and Reform Commission on May 26 2009
asserted that purchasing by local governments had
actually been biased in favour of foreign
suppliers . The notice requires that for the
future Chinese companies should receive
contracts for government stimulus projects unless
Chinese companies cant deliver certain technical
goods at a reasonable price or time frame.
30
Ex The auto bailout plan in France
A controversy erupted in February 2009 as to
whether the French auto bailout plan was
compatible with EU competition rules. On 5
February 2009, President Sarkozy had indicated
that he wished that the movement toward
relocating plants outside France be stopped and
that, if possible, jobs be repatriated to France
He added If financial aid is given to the
automobile sector for restructuring, it is on the
condition that no new plant will be moved to the
Czech Republic or elsewhere. On 10 February
2009, the EC Competition Commissioners suggested
that such aid would be illegal under EU
competition rules. That same day, the EU
presidency (exercised under the rotation system
by the President of the Czech Republic) denounced
the protectionism of the French Government.
So did the German Government. On on 27 February
2009 the Commission finally approved the aid
measures.
31
Conclusion III
  • -Stimulus packages may have discriminatory and/or
    anticompetitive effects by design (cf Buy
    American Act)
  • It is often because governments fearing that (
    economic) leaks may benefit foreigners, insert
    discriminatory conditions into their fiscal
    programs to prevent such seepage when they
    consider using budgetary deficits as a means to
    support demand ( ex French automobile industry
    bail out)
  • -Adoption of discriminatory and anticompetitive
    rules leads to retorsions ( cf China Buy Chinese
    Act)
  • - International pressure is in some cases
    sufficient to eliminate some discriminatory and
    anticompetitive aspects of stimulus packages but
    not in other cases ( see the difference between
    US and China)

32
Measures adopted by governments in a period of
crisis
  • 4) Protectionist measures
  • Direct protectionist border measures
  • Imposition of antidumping duties
  • Tariff increases
  • Non tariff barriers

33
Risks of protectionist measures as a response to
the crisis
Stimulus package At this juncture, European
businesses also face the additional risk of an
increase in the recent resurgence of
protectionist tendencies globally which are
reflected in various types of measures, often
below the threshold of being actionable but with
the potential of triggering an avalanche of "tit
for tat" responses. Ensuring that measures
supporting the business environment through the
crisis do not contribute to such developments
will be crucial. Preventing that remains an
important task for monitoring and coordination
going forward.
Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
34
Protectionist measures
  • We commit to fight all forms of protectionism
    and maintain open trade and investment
  • Communiqué following the G-20 meeting in the
    U.K., Sunday March 15 2009
  • But
  • - Early in 2009, the US congress adopted a Buy
    American provision in the economic stimulus
    package
  • The US is preparing to impose antidumping duties
    on Chinese steel imports
  • In 2008 India imposed safeguard measures on
    steel imports
  • In early 2009 France adopted measures to
    subsidize potential buyers of Airbus planes ( 5
    billion euros) etc..
  • In early 2009 France considered conditioning
    state aid to the
  • automobile industry on repatriation of plants on
    French territory.

35
The trade coverage of crisis-era protectionism
Of the beggar-thy-neighbour state measures taken
since the first crisis-related G-20 summit in
November 2008, nearly 650 have yet to be
reversed. () A total of 22 so-called jumbo
measures were identified here and then analysed.
() The trade coverage of these jumbo measures
is equivalent to more than ten percent of world
imports. This level of trade coverage makes
crisis-era protectionism a trillion-dollar
phenomenon worthy of greater attention from
policymakers
Simon J. Evenett and Johannes Fritz "Jumbo"
discriminatory measures and the trade coverage of
crisis-era protectionism, 21 June 2010
36
Table 1. The list of jumbo discriminatory
measures, presented in descending order of trade
covered.
37
(No Transcript)
38
The role of competition authorities in a time of
crisis
39
Possible enforcement strategies for competition
authorities in the near future
1) Denial Nothing has happened which should lead
competition authorities to do anything
differently ( the crisis happened because we did
not rely enough on unregulated competitive
market mechanisms) (Business as usual)? 2)
Panic The exclusive focus on consumer welfare is
untenable in a period characterized by a deep
financial and economic crisis calls for more
regulation and protectionist policies. We have to
go back to the antitrust goals of the 1960s
which were more concerned with distributional
issues 3) Adjustment We should keep the same
goals and standards but acknowledge that the
macroeconomic context in which we are enforcing
competition is different from the past and
acknowledge that this is going to influence
antitrust enforcement.
40
Role of competition authorities in crisis
1) Help design adequate regulations 2) Help
design and/or control rescue packages (
particularly conditions of aids, sunset clauses,
rendez vous clauses, evaluation, etc.)? 3)
Control of protectionist measures ( are US and
EU competition authorities right to abstain from
intervening in antidumping proceedings?) 4)
Merger control 5) Control of anticompetitive
practices by firms 6) Take up new issues
41
1) Interventions of competition authorities in
the regulatory process
  • Consultation/Advocacy
  • Ex US Banking mergers ( DOJ and FED simultaneous
    competition assessments)?
  • But US lack of consultation of FTC on automobile
    bailout package
  • Participation in governmental decision making
    process
  • Ex Status of Korean KFTC chairman is there a
    trade off between independence and influence
  • Control of impact of government interventions on
    competition
  • Ex EC State Aid Control, France (binding opinions
    of competition authority in some cases).


42
2) Possible enforcement adjustments in a time of
crisis
  • Case selection (more pressure to take up socially
    relevant cases in a time of economic depression
  • Procedural flexibility ( ex week end reviews of
    bznke mergers or bail out plans)?
  • Interim measures/ preliminary injonctions (
    increased fragility of some firms)?
  • Cartel enforcement ( likelihood of increased
    frequency of cartels but increased instability of
    cartels)?
  • Potential competition ( decrease in the fluidity
    of reallocation of
  • resources, lower intensity of potential or actual
    competition due to sharp decline in
    international trade)?

43
Possible enforcement adjustments in a time of
crisis
  • Abuse of dominance/monopolization ( more concern
    about ensuring that dominant position do not
    impair entry, toward a revision of Trinko?)
  • Mergers (more frequent use of the failing firm
    doctrine)?
  • Merger remedies (possible difficulties to impose
    divestitures because of paucity of potential
    buyers hence either longer delays
  • granted for divestiture or shift toward
    behavioural remedies)?

44
3) Possible agenda for the post-recovery period
1) Renewed attention to the way in which
constraints/rewards shape performance at the
micro level (incentive structures)? 2) Renewed
focus on principal-agent relationship in
corporate structures (board governance) 3)
Risk as a dimension of economic performance (
possible developments toward behavioural
economics)? 4) Issue of social responsibility
of firms (employement, compensation, environment,
climate etc..)? 5) Relationship between
regulation and competition
45
Conclusion
Competition is not part of the problem but it is
definitely part of the solution. What we have
learned from the crisis is that short run profit
maximization ( by bankers) combined with
excessive risk taking without consideration for
long term economic development can have
catastrophic results. This lesson also applies
to the remedies used in a period of
crisis. Competition authorities have an
important role to play in the coming years.
46
Thank you for your attentionfrederic.
jenny_at_gmail.com
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Financial crisis , Regulation and Antitrust

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Title: Financial crisis , Regulation and Antitrust


1
Financial crisis , Regulation and Antitrust
  • Frederic Jenny
  • Chair OECD Committee
  • Professor of Economics ESSEC

CIRC Conference on Revisiting the Global
Experience with Economic Regulation, New Delhi,
April 19th and 20th 2011

2
Issues
Measures adopted by governments in a period of
crisis 1) Measures aimed at restoring
confidence in financial markets and ensuring the
stability of financial markets. 2) Extending
the reach of regulation in the financial
sector 3) Measures aimed at preventing the
extension or the deepening of the economic crisis
in the real sector. 4) Protectionist
measures The role of competition authorities in
a time of crisis 1) Interventions of
competition authorities in the regulatory
process 2) Possible enforcement adjustments in
a time of crisis 3) Possible agenda for the
post-recovery period Conclusion
3
Short run and long run consequences of the
financial and real crisis for antitrust
Two different questions 1) How is antitrust
going to be affected during the crisis (a
period of retrenchement) 2) What is the
antitrust world going to look like after the
crisis (a return to business as ususal ? The
emergence of a new paradigm ?)?
4
Measures adopted by governments in a period of
crisis
  • Measures aimed at restoring confidence in
    financial markets and ensuring the stability of
    financial markets.
  • -Injections of liquidity into financial markets
    by central banks
  • -Issuances of short and medium-term debt to
    assist banks, credit
  • institutions, pension funds or insurance
    companies to overcome a
  • temporary liquidity shortage
  • -Government guarantee of financial institutions
    liabilities
  • -Regulatory capital forbearance,
  • -Recapitalization of banks and insurance
    companies.
  • -Carving-out of insolvent banks bad loan
    portfolios (usually
  • accompanied by organizational restructuring of
    the banks)
  • -Restructuring of the banking and financial
    sector in order to
  • increase the stability of these sectors.

5
Preventing an outright collapse of the financial
system
After September 2008 EU Member State
governments, together with the Commission,
spelled out the principles and objectives for a
coordinated approach to tackle the crisis. Rescue
packages for national banking sectors were
rapidly set up, in line with the guidance swiftly
provided by the Commission on the design and
implementation of State aid in favour of
banks. Between October 2008 and July 2009 , the
Commission has approved a total of over 3½
trillion (almost one-third of the GDP) of State
aid measures to financial institutions. So far,
EUR 1½ trillion (13 of GDP) have been
effectively used under the four main headings of
debt guarantees, recapitalisation, liquidity
support, and treatment of impaired assets. The
main rationale is to ensure that rescue measures
can fully attain the objectives of financial
stability and maintenance of credit flows, while
minimising competition distortions and negative
spillovers of public interventions between
beneficiaries of aid in different Member States,
between beneficiaries with different risk
profiles and between aid beneficiaries and banks
that do not benefit from aid.
Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
6
State guarantees on bank liabilities
They represent the largest budgetary commitment
among the aid instruments, with EUR 2.9 trillion
(25 of EU GDP) of approved measures, out of
which EUR 1 trillion (8 of GDP) have been
effectively granted. Set up as an immediate
response to the drying up of liquidity in the
interbank market in the early days of the crisis,
their aim was to provide a timely solution to the
lack of confidence and remedy the liquidity
squeeze and its wider consequences. Member
States have typically chosen to provide such
guarantees in national schemes, with a time
limited window during which banks could make use
of them. The main potential source of negative
spillovers of such measures, which could also
jeopardise their effectiveness, was the danger of
large flows of funds between Member States in
search for the highest level of protection.
Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
7
State guarantees on bank liabilities
In order to avoid such arbitrage, the Banking
Communication of 13 October 2008, together with
the ECB recommendations on pricing of government
guarantees, provided conditions with which any
national guarantee on banks liabilities would
have to comply. - They need to be open to all
banks, including subsidiaries of foreign banks
established in a Member State without any
discrimination -they can cover liabilities
longer than 3 months lasting up to three years
(subsequently prolonged. Some Member States
also chose to provide other liquidity and bank
funding support, totalling over EUR 300 billion
(3 of EU GDP) of approved measures, of which the
bulk has been used.
Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
8
Example the Irish bank guarantee scheme
On 2 October 2008, following a crash in the value
of bank stocks on the Irish stock exchange, the
Irish Government decides to grant an unlimited
guarantee on all bank deposits at its six main
banks for the next two years, to maintain
financial stability. The Irish guarantee scheme
does not underwrite the non-Irish banks which
were competing with the Irish Banks, thus
creating a potential domestic competition
problem. It triggered a cross-border flow of
cash from British businesses to Irish banks
making the British banks more fragile The
British Government denounced the discriminatory
and anti-competitive nature of the Irish scheme.
The European Commission forced the Irish
Governement to amend its scheme and to provide
coverage of banks with systemic relevance to the
Irish economy (not just Irish banks).
9
Recapitalisation of banks in the EU
  • . The Commission published the Recapitalisation
    Communication of 5 December 2008 (European
    Commission 2008c) guiding the design of
    recapitalisation of banks by Member States.
  • The main principles that limit the competition
    distortion of these structural and
  • lasting interventions are
  • (i) the price that the beneficiary has to pay for
    State capital, which depends on the risk profile
    of the bank and the seniority of the instrument
    used, and
  • (ii) the follow up required from the bank, which
    can go from an exit strategy from reliance on
    State capital for fundamentally sound banks to
    in-depth restructuring or liquidation for
    distressed banks.

Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
10
Example the recapitalization of Northern Rock
In August 2007, the British Government announces
various public support mechanisms to support
Northern Rock Plc bank and the bank is taken into
temporary public ownership (TPO) in February
2008. The Office of Fair Trading points out
that in the personal current account, savings and
investment product markets, consumers concerned
about the stability of banks might choose
Northern Rock because it was the only bank with a
100 per cent deposit guarantee. The OFT also
worries that Northern Rock might be able to take
advantage of a lower cost of capital in money
markets to offer lower rates on its mortgages.
This could lead to an adverse impact on
competition that may in turn lead to consumer
harm. The Northern Rock Restructuring Plan
issued in March 2008 includes commitments by
Northern Rock to minimise risk of competitive
distortions. It will not promote its offering on
the basis of Government guarantee arrangements,
nor will to sustain a prolonged market
leadership in any product category and to
maintain market shares at well below historic
levels.
11
Treatment of impaired assets
On 25 February 2009,the Commission (European
Commission 2009g) provided guidance for the
treatment of impaired assets. Irrespective of the
design of the asset relief measures, be it as
purchase, guarantee, or a hybrid, it requires
full transparency and disclosure from beneficiary
banks, adequate burden sharing between the State
and the beneficiary, and prudent valuation of
impaired assets based on their real economic
value both in the base and stress
Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
12
Other measures the merger between LLoyds TSB and
HBOS
In September 2008 the UK government engineers
acquisition of HBOS Plc by Lloyds TSB. The
Office of Fair Trading reports that Lloyds TSB
would then have a share of 33 on the market for
personal accounts and 28 of the U.K. home-loan
market and that the collective share of the big
four UK banks would rise from 67 to 80. It
states that there is a realistic prospect that
the anticipated merger will result in a
substantial lessening of competition in relation
to personal current accounts, banking services
for small and medium sized enterprises and
mortgages. On 24 October 2008, an amendment to
the UKs merger control rules introduced a new
public interest consideration to be weighed
against the consideration of effect on
competition maintaining the stability of the UK
financial system and the merger is approved on
31 October 2008
13
Importance of competition in the financial sector
in a time of crisis
  • Complement of stimulus packages (distribution of
    credit)?
  • Passing on of decrease in refinancing rates (
    cheaper credit)?
  • Financial innovation ( allowing savings to be
    directed into the most productive capital
    investments).
  • Those objectives are unlikely to be achieved
    unless there is a sufficient degree of
    competition between financial institutions

14
Independent Commission on Banking in the UK
Interim Report
() UK retail banking needs to be more
competitive. The damage to competition done by
the crisis will not be remedied by the
divestitures of RBS and Lloyds assets required by
the European Commission. But now there are
opportunities to make competition work better for
customers. First, the Lloyds divestiture could
be strengthened to create a more effective
challenger to the incumbent banks. Second, the
ability of customers confidently to switch
between banks could be greatly improved. Together
with better conditions for customer choice, this
would make banks compete more effectively to
deliver what customers want. Third, current
reform of UK regulatory institutions must ensure
that effective competition can at last be a
central force in UK financial regulation. The
Commissions current view is that all three
opportunities to promote competition should be
seized.
1) Sir John Vickers, April 11 2011
15
Possible toxic effects of direct interventions
in the financial sector
  • Distorsion of incentive leading operators to
    deviate from profit maximizing behaviour
  • Distortion of competition (aided financial
    institutions can prevail over possibly more
    efficient unaided competitors)?
  • - Unnecessary lessening of competition (
    particularly in the area of mergers)

16
Conclusion
Measures aimed at restoring confidence in
financial markets and ensuring the stability of
financial markets are often discriminatory and
anticompetitive and they may also impact
competition in the real sector (ex Farm
Equipemnt in the US). In some cases the NCA is
not consulted ( ex Irish Bank Guarantee Scheme,
Farm Equipment in the US) in other cases the
NCA is consulted either successfully (ex
Northern Rock bail out) or unsuccessfully (ex
Lloyds Plc/ HBOS merger) The EC Commission has
some power to force Member States which take
discriminatory or anticompetitive measures but is
powerless to intervene in some other cases (
exthe Lloyds Plc/ HBOS merger).
17
Measures adopted by governments in a period of
crisis
  • 2) Extending the reach of regulation in the
    financial sector
  • - Strengthening of prudential regulation of
    financial institutions
  • - Regulation to limit the growth or the
    diversification of banks
  • - Regulation of new players on financial markets
    ( hedge funds , for example)
  • - Regulation of new financial instruments ( CDOs,
    for example)
  • - Regulation of incentives for executives in the
    financial sector (bonuses, golden parachutes,
    stock options)
  • Regulation of Credit Rating Agencies
  • Modifying accounting rules ( mark to market)
  • Extending the reach of regulators ( international
    cooperation)?

18
Independent Commission on Banking in the UK
Interim Report
First, we estimate that systemically important
banks should have an equity ratio of at least 10
provided that they also have genuinely
loss-absorbing debt. We believe this should be
agreed internationally. But whether or not it is,
we believe that it should apply to UK retail
banking. Then international standards would apply
to the wholesale and investment banking
activities of UK banks, so long as the taxpayer
is not on the hook if they fail. Second, and in
structural support of that approach to capital,
the Commission sees merit in a UK retail
ring-fence. This would require universal banks
to maintain the UK retail capital ratio that
is, not to run down the capital supporting UK
retail activities below the required level in
order to shift it, say, to global wholesale and
investment banking. Our current view is that such
a limit on banks freedom to deplete capital
would be proportionate and in the public
interest, and would preserve benefits of
universal banking while reducing risks. Without
it, capital requirements higher than 10 across
the board might well be called for.
1) Sir John Vickers, April 11 2011
19
Example regulating the credit rating
agencies (CRAs)
Ensuring that CRAs give accurate assessments of
the risk quality of assets is crucially important
for investors, firms seeking financing, regulated
firms such as banks which are constrained in the
kind of risky assets they can hold and regulators
who rely on CRAS assessments. Reasons to doubt
that competition is strong and that it will
eliminate CRAs giving poor quality credit rating
(high concentration, necessity for regulated
firms or other firms to get credit rated leading
to low price elasticity of demand, possible
conflicts of interest when CRAs also sell other
services, possible collusion between CRAs and
clients). Alternative solutions with different
competitive impacts include self-regulation,
transparency requirements and best practices,
regulation, modification of regulatory agencies
reliance on assesments of the Big Three, creation
of public rating agencies etc..
19
20
Possible toxic effects of regulations
  • Ineffective regulations (loopholes, electricity
    regulation and Enron, financial regulation)?
  • Regulations which distort incentives in
    unexpected ways
  • Regulations which unnecessarily restrict/ distort
    competition (telecom regulation after the breakup
    of ATT)?
  • -Regulations which impair innovation ( see
    Greenspan)
  • Hence necessary cooperation between sectoral
    regulators and competition authorities for the
    design of appropriate regulations

21
Conclusion II
Regulatory proposals for the financial sector can
have serious implications for competition. There
is a large number of such proposals being
considered now following the G-20 meeting of A
lot of these proposals are drafted by financial
authorities or rgulators without input from
competition authorities and it is far from sure
that competition issues are even considered to be
relevant by the drafters
22
Measures adopted by governments in a period of
crisis
  • 3) Measures aimed at preventing the extension or
    the deepening of the economic crisis in the real
    sector.
  • Stimulus packages including
  • Direct aid to ailing business firms or small and
    medium size firms which are collateral victims of
    the credit crisis
  • -Subsidized interest rate for certain types of
    firms
  • -Sectoral aid designed to boost demand in
    specific sectors.

23
Fiscal stimulus The European Economic Recovery
Plan (EERP)
Stimulus package Endorsed by the European Council
in December 2008. The Plan aimed to provide a
framework for a coordinated crisis control
policy, while also laying down guidance on
principles governing the measures taken at
national level. Size The Plan originally
totalled 200 billion, or 1.5 per cent of EU GDP
in 2009, to boost demand while respecting the
Stability and Growth Pact. It was made up of a
budgetary expansion by the Member States of 170
billion and EU funding to support immediate
actions of about 30 billion. Total spending
has been greater than initially foreseen,
however, with outlays amounting to 1.4 per cent
of GDP in 2010 in addition to the 2009
stimulus. In line with the principles set out in
the Plan, many Member States have adopted or
announced significant fiscal stimulus packages to
promote investment, support households
purchasing power, help enterprises and sustain
labour markets.
Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
24
Supporting viable businesses The European
Economic Recovery Plan (EERP)
Stimulus package The EERP recognised the need for
public intervention to support viable businesses
during the crisis to ease financing constraints
facing and to support specific credit services
(e.g. export credit insurance) which markets were
temporarily unable to provide, at least at
economically viable conditions and prices.
Beyond the aggregate demand support provided by
macroeconomic instruments, there may also be a
case for temporary government support targeted at
sectors where demand has been disproportionately
affected by the crisis and could cause important
dislocations. Temporary public support could
help prevent unnecessary and wasteful labour
shedding and the destruction of otherwise viable
and sound companies. These measures will help
contain the negative effects of the crisis on
potential output by preventing a permanent loss
of knowledge and skills and a reduction of
productive capacity far beyond what would be
expected during a normal cyclical slowdown.
Finally, there may be instances, where
government support on the supply side is
warranted for sectors and business where there
are technological or other spillovers benefits to
the economy.
Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
25
Supporting viable businesses The European
Economic Recovery Plan (EERP)
Stimulus package The March 2009 Commission
Communication "Driving European Recovery" set out
a number of guiding principles for actions to be
taken by Member States in support of businesses,
among which were the following -Maintaining
openness within the internal market, continuing
to remove barriers and avoid creating new
ones. -Ensuring non-discrimination by treating
goods and services from other Member States in
accordance with EU rules and Treaty
principles. -Targeting interventions towards
longer-term policy goals facilitating structural
change, enhancing competitiveness in the long
term and addressing key challenges such as
building a low carbon economy. -Sharing
information and best practice. -Pooling efforts
and designing measures so that they generate
synergies with those taken by other member
states. Stronger co-operation at European level
is key in this respect. - Keeping the Single
Market open to trading partners and respect
international commitments, in particular those
made in the WTO.
Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
26
Assessing support for businesses measures in The
European Economic Recovery Plan (EERP)
Stimulus package Support for businesses sectors
under the EERP has been provided both on the
demand and the supply side (state aid). Most
Member States have put in place horizontal
frameworks that allow policy support to be given
to sectors that are most affected by the crisis
(e.g. cars, tourism, construction), and, as a
general rule, these seem temporary, targeted and
timely. However, there is considerable
variation across Member States in terms of the
support actually provided. Also, the
effectiveness of national schemes for industries
operating across the entire internal market could
be somewhat limited. Should schemes need to be
maintained beyond the year end then there would
be a clear case for more coordination at the
European level.
Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
27
The European Economic Recovery Plan (EERP)
  • Stimulus package
  • The national plans have generally been targeted
    on policy areas identified in the Plan
  • - about 39 per cent of the stimulus has been
    directed towards supporting
  • households purchasing power (including
    vulnerable groups),
  • 16 per cent to supporting labour markets,
  • 20 per cent to investment activities, and
  • 25 per cent as support to businesses.
  • About two thirds of support measures are
    temporary.

Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
28
Example the introduction of discriminatory
provision in the US stimulus package
The American Recovery and Reinvestment Act
(ARRA) adopted in February 2009 included a
provision which required the use of US produced
steel, iron and manufactured goods in public
works funded by the ARRA, subject to certain
exceptions (public interest, non-availability or
unreasonable cost). A second provision required
the Department of Homeland Security to procure US
manufactured textile and apparel goods.
Following President Obamas intervention, the
ARRA requires that these provisions be applied in
a manner consistent with US obligations under
international agreements. Further, Congress has
indicated that the "buy American" provision for
iron, steel and manufactured goods is not
intended to apply to LDCs. However, US state
and municipal governments will be able to impose
restrictions on the origin of steel and
manufactured goods in procurement markets.
29
Examplethe introduction of discriminatory
provision in the Chinese stimulus package
China also adopted a large stimulus package (
worth US 586 billion) at the end of November
2008. A notice issued by several central state
agencies including the powerful National
Development and Reform Commission on May 26 2009
asserted that purchasing by local governments had
actually been biased in favour of foreign
suppliers . The notice requires that for the
future Chinese companies should receive
contracts for government stimulus projects unless
Chinese companies cant deliver certain technical
goods at a reasonable price or time frame.
30
Ex The auto bailout plan in France
A controversy erupted in February 2009 as to
whether the French auto bailout plan was
compatible with EU competition rules. On 5
February 2009, President Sarkozy had indicated
that he wished that the movement toward
relocating plants outside France be stopped and
that, if possible, jobs be repatriated to France
He added If financial aid is given to the
automobile sector for restructuring, it is on the
condition that no new plant will be moved to the
Czech Republic or elsewhere. On 10 February
2009, the EC Competition Commissioners suggested
that such aid would be illegal under EU
competition rules. That same day, the EU
presidency (exercised under the rotation system
by the President of the Czech Republic) denounced
the protectionism of the French Government.
So did the German Government. On on 27 February
2009 the Commission finally approved the aid
measures.
31
Conclusion III
  • -Stimulus packages may have discriminatory and/or
    anticompetitive effects by design (cf Buy
    American Act)
  • It is often because governments fearing that (
    economic) leaks may benefit foreigners, insert
    discriminatory conditions into their fiscal
    programs to prevent such seepage when they
    consider using budgetary deficits as a means to
    support demand ( ex French automobile industry
    bail out)
  • -Adoption of discriminatory and anticompetitive
    rules leads to retorsions ( cf China Buy Chinese
    Act)
  • - International pressure is in some cases
    sufficient to eliminate some discriminatory and
    anticompetitive aspects of stimulus packages but
    not in other cases ( see the difference between
    US and China)

32
Measures adopted by governments in a period of
crisis
  • 4) Protectionist measures
  • Direct protectionist border measures
  • Imposition of antidumping duties
  • Tariff increases
  • Non tariff barriers

33
Risks of protectionist measures as a response to
the crisis
Stimulus package At this juncture, European
businesses also face the additional risk of an
increase in the recent resurgence of
protectionist tendencies globally which are
reflected in various types of measures, often
below the threshold of being actionable but with
the potential of triggering an avalanche of "tit
for tat" responses. Ensuring that measures
supporting the business environment through the
crisis do not contribute to such developments
will be crucial. Preventing that remains an
important task for monitoring and coordination
going forward.
Economic Crisis in Europe Causes, Consequences
and Responses EUROPEAN ECONOMY 72009
34
Protectionist measures
  • We commit to fight all forms of protectionism
    and maintain open trade and investment
  • Communiqué following the G-20 meeting in the
    U.K., Sunday March 15 2009
  • But
  • - Early in 2009, the US congress adopted a Buy
    American provision in the economic stimulus
    package
  • The US is preparing to impose antidumping duties
    on Chinese steel imports
  • In 2008 India imposed safeguard measures on
    steel imports
  • In early 2009 France adopted measures to
    subsidize potential buyers of Airbus planes ( 5
    billion euros) etc..
  • In early 2009 France considered conditioning
    state aid to the
  • automobile industry on repatriation of plants on
    French territory.

35
The trade coverage of crisis-era protectionism
Of the beggar-thy-neighbour state measures taken
since the first crisis-related G-20 summit in
November 2008, nearly 650 have yet to be
reversed. () A total of 22 so-called jumbo
measures were identified here and then analysed.
() The trade coverage of these jumbo measures
is equivalent to more than ten percent of world
imports. This level of trade coverage makes
crisis-era protectionism a trillion-dollar
phenomenon worthy of greater attention from
policymakers
Simon J. Evenett and Johannes Fritz "Jumbo"
discriminatory measures and the trade coverage of
crisis-era protectionism, 21 June 2010
36
Table 1. The list of jumbo discriminatory
measures, presented in descending order of trade
covered.
37
(No Transcript)
38
The role of competition authorities in a time of
crisis
39
Possible enforcement strategies for competition
authorities in the near future
1) Denial Nothing has happened which should lead
competition authorities to do anything
differently ( the crisis happened because we did
not rely enough on unregulated competitive
market mechanisms) (Business as usual)? 2)
Panic The exclusive focus on consumer welfare is
untenable in a period characterized by a deep
financial and economic crisis calls for more
regulation and protectionist policies. We have to
go back to the antitrust goals of the 1960s
which were more concerned with distributional
issues 3) Adjustment We should keep the same
goals and standards but acknowledge that the
macroeconomic context in which we are enforcing
competition is different from the past and
acknowledge that this is going to influence
antitrust enforcement.
40
Role of competition authorities in crisis
1) Help design adequate regulations 2) Help
design and/or control rescue packages (
particularly conditions of aids, sunset clauses,
rendez vous clauses, evaluation, etc.)? 3)
Control of protectionist measures ( are US and
EU competition authorities right to abstain from
intervening in antidumping proceedings?) 4)
Merger control 5) Control of anticompetitive
practices by firms 6) Take up new issues
41
1) Interventions of competition authorities in
the regulatory process
  • Consultation/Advocacy
  • Ex US Banking mergers ( DOJ and FED simultaneous
    competition assessments)?
  • But US lack of consultation of FTC on automobile
    bailout package
  • Participation in governmental decision making
    process
  • Ex Status of Korean KFTC chairman is there a
    trade off between independence and influence
  • Control of impact of government interventions on
    competition
  • Ex EC State Aid Control, France (binding opinions
    of competition authority in some cases).


42
2) Possible enforcement adjustments in a time of
crisis
  • Case selection (more pressure to take up socially
    relevant cases in a time of economic depression
  • Procedural flexibility ( ex week end reviews of
    bznke mergers or bail out plans)?
  • Interim measures/ preliminary injonctions (
    increased fragility of some firms)?
  • Cartel enforcement ( likelihood of increased
    frequency of cartels but increased instability of
    cartels)?
  • Potential competition ( decrease in the fluidity
    of reallocation of
  • resources, lower intensity of potential or actual
    competition due to sharp decline in
    international trade)?

43
Possible enforcement adjustments in a time of
crisis
  • Abuse of dominance/monopolization ( more concern
    about ensuring that dominant position do not
    impair entry, toward a revision of Trinko?)
  • Mergers (more frequent use of the failing firm
    doctrine)?
  • Merger remedies (possible difficulties to impose
    divestitures because of paucity of potential
    buyers hence either longer delays
  • granted for divestiture or shift toward
    behavioural remedies)?

44
3) Possible agenda for the post-recovery period
1) Renewed attention to the way in which
constraints/rewards shape performance at the
micro level (incentive structures)? 2) Renewed
focus on principal-agent relationship in
corporate structures (board governance) 3)
Risk as a dimension of economic performance (
possible developments toward behavioural
economics)? 4) Issue of social responsibility
of firms (employement, compensation, environment,
climate etc..)? 5) Relationship between
regulation and competition
45
Conclusion
Competition is not part of the problem but it is
definitely part of the solution. What we have
learned from the crisis is that short run profit
maximization ( by bankers) combined with
excessive risk taking without consideration for
long term economic development can have
catastrophic results. This lesson also applies
to the remedies used in a period of
crisis. Competition authorities have an
important role to play in the coming years.
46
Thank you for your attentionfrederic.
jenny_at_gmail.com
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