Speech R. Jansen, Agency Effectiveness, ICN workshop, Brussel 22-23 januari 2009

Speech by R. Jansen held on ICN workshop in Brussel at 22-23 januari 2009 about agency effectiveness. Three main issues were discussed in the framework of this topic: case and project management, agency structure, and human resources issues (particularly recruitment and retention).

Management of cases and other projects
A project, in the context of a competition agency, will most often be a case investigation, but can also be a market study or an advocacy or information campaign.

Regarding cases, a starting point is clear prioritisation criteria, as discussed in the previous section, especially (but not only) for agencies with a large amount of non-discretionary work, where there is necessarily a large portfolio of open cases, some of which will be technically open, but not actively investigated. The criteria for selecting a case for in-depth study will normally include, not only its degree of congruity with the work plan and objectives, but the potential impact of the case (direct economic impact and deterrence value), and the prima facie strength of the evidence and the theory of harm.

Involvement of senior management in deciding on priority status of case early on in the procedure – with possible regular follow-up to continue to check priority – is important. Some agencies have a two-stage process for selecting cases for detailed investigation, with a first filtering carried out by a group or committee which makes recommendations to senior management, and senior management taking a final decision. It can be useful to think of project management as a "pipeline", with some projects at the stage of preliminary ideas for evaluation, others at an early investigation phase and others more advanced. Discipline is required to eliminate potentially easy or clear-cut cases (which could contribute to activity indicators) but which are not in line with agency objectives or work plan, or which have limited economic impact.

Following this preliminary sifting of cases, there are two other stages at which review of cases is commonly carried out (although additional reviews are also common):
- an intermediate stage, following preliminary investigation (some agencies refer to this as a "go/no go" decision);
- an advanced stage, immediately prior to the preparation of a final decision/prosecution.

Ideally, capacity used on non-viable cases would be minimised, by terminating such cases as early as possible in their progress (but close calls are sometimes involved as many cases are not clear-cut). Review and support in the early stages of a case investigation is essential, to identify problems, and stop a case as early as possible if it is unpromising. Ongoing review at defined intervals is also important. Not stopping an unpromising case can be the most costly thing in terms of resources, since court appeals can tie up a significant percentage of agency staff, and losing in court can have an adverse effect on agency reputation. Avoiding long court proceedings through more solid decisions and prosecutions would have a positive effect on output by freeing up more staff to work on new cases.

Deadlines help in focusing resources. For cases to which no legal deadlines apply, it can be helpful for management to set internal "milestones", i.e. targets with fixed dates, for the case team to reach specific stages of the investigation, and submit their progress to management (or peer) review.

In some agencies management reviews the case portfolio regularly (e.g. every two weeks) to get "early warning" of possible problems, and takes major decisions on project continuation/discontinuation on a regular basis (e.g. quarterly). Another tool which can be used is "peer group reviews" at certain defined stages of the investigation (particularly the "go/no go" stage), in which staff members not involved in the case review the evidence and theory of harm, and give their opinion on the strength of the case. This can be motivating for staff, but may also be burdensome in terms of staff time. It is important to get the balance right between case work and case review and scrutiny (not falling into the trap of having more scrutiny than real case work).

Tools such as software applications to allow management to review the casework portfolio at any time can be useful, but they must not be overly burdensome or allowed to be used in a formalistic bureaucratic way. Some more sophisticated such tools allow recording of man-days spent on different tasks, and thus allow better planning of work. Security of such applications is important, as they often have case documents uploaded. Cost of such applications is also an issue. Staff resistance to new reporting applications was noted in certain cases.

Speed and quality was widely felt to be a false dichotomy. Clear case management tools and criteria and deadlines, with effective management oversight, assist staff to be efficient quickly. Staff generally appreciate legally binding deadlines, which impose efficient practices internally in agencies and avoid "delaying tactics" from lawyers.

Agency structure
The most suitable agency organisation and structure for effective project management was discussed. The basic options are a sectoral-based organisation, and an instrument-based organisation. Some agencies have a hybrid (matrix) structure. Sometimes an instrument-based approach is necessary, when the different instruments require very different skills (e.g. criminal cartel investigations vs. merger review). A sectoral-based structure where some work is discretionary and other work is not (e.g. merger cases are obligatory but other cases are discretionary) could result in the obligatory work crowding out the discretionary work. The most appropriate structure depends on agency size, legal setup, and balance of agency work and priorities. Flexibility in re-allocation of resources internally (i.e. a project-based allocation of resources) is essential.

Case management issues can be different in younger agencies, which tend to be small. Organisational methodology may be less of an issue, resources are often lacking for sophisticated software tools, and the case portfolio is sufficiently small for management to easily keep track. There can a strong focus small number of cases, to establish agency reputation through early successes. Advocacy work often takes a high priority. All these factors can impact on agency structure.

Human resource issues
Recruitment and retention of staff was covered in the seminar as an essential adjunct to project management; projects are carried out by people, and the best project management techniques cannot succeed without competent and motivated staff.

Since competition agencies need to have highly-qualified staff, and most agencies cannot compete in salary with private sector employers (especially law firms), there was consensus that agencies need to do more than most public sector employers to motivate and retain staff, including high-quality training, opportunity to engage in academic work, work-life balance and family-friendly atmosphere, career development advice etc. In any pyramidal organisation, not all staff members with management potential can progress to management, but for those staff who do not progress upwards, it is challenging for competition agencies to find a rewarding variety of work over a full career, given their limited size and range of tasks.

But the best single thing which an agency can do, in order to recruit and retain staff, is to maintain an excellent reputation, so that it becomes an "employer of choice". Otherwise, there is a risk that agencies will be staffed by relatively inexperienced graduates, who go to the private sector after gaining a few years of agency experience, thus ensuring a structural personnel advantage of law firms against agencies in cases and litigation.

However, a certain level of staff turnover is healthy, to ensure development opportunities for those who remain, and avoid stagnation. Maintaining good relations with agency alumni can be beneficial (they may constitute useful contacts outside the agency). In any case, former staff may return, and a spell elsewhere can be motivational, as long as the door is kept open for a return. Knowledge management systems are however necessary in case of high staff turnover.

Regarding recruitment, it may be beneficial to recruit some project management experts (or at least have focussed training in project management). Competition agency staff tend to be lawyers or economists, neither of which are trained in project management.

It was remarked that training should be planned and designed to reinforce agency objectives. Sometimes training is too oriented on academic issues of competition law which rarely occur in real cases, and neglects the basics, such as good procedure. Training in communication and advocacy techniques may be less prevalent than in casehandling techniques. Participation in international events, such as ICN workshops, can be a beneficial part of staff training.

Rewards for individual staff members (bonuses, promotions…) should be based directly on the effective delivery of their objectives (not on the economic impact, as this often is only known some time later following evaluation, and in any case, management should collectively take responsibility for impact, since the decision on which cases go ahead is a management decision).

Objective-setting for individual staff members, and their evaluation, should flow naturally from the objectives of the organisation. Deadlines and targets for staff members should be clear. Internal communication with staff (of objectives priorities etc.) is important, but staff should not be submerged with vast quantities of information.

Possible next steps: 

• examination of tools and techniques for optimal case management, with regard to case selection and ongoing monitoring;

• work on different agency structures (instrument-based, sector-based, project-based), to ascertain which structures work best in which conditions (type and size of agency, agency objectives); 

• exchange of ideas on ways to recruit, retain and motivate competition agency staff, in the face of superior earning ability in the private sector.