Monday

19th Nov 2018

Opinion

The unique role of the EU's competition commissioner

  • Margrethe Vestager's role is a very special one, unique among portfolios. (Photo: Radikale Venstre)

With outgoing EU competition commissioner Joaquin Almunia having packed his family photos into the obligatory single cardboard box that embodies professional departures, the Brussels competition community is abuzz with speculation as to what might lie ahead under his replacement, Margrethe Vestager.

Their contrasting public styles also invite some comment, with Mr Almunia under the cloud of an ombudsman investigation for outspoken public comment on a pending case.

Read and decide

Join EUobserver today

Support quality EU news

Get instant access to all articles — and 18 year's of archives. 30 days free trial.

... or join as a group

The comment was recently made on EUobserver that the new EU competition commissioner Margrethe Vestager, although “a politician through and through” will have “the least political portfolio: going after cartels and illegal state aid”.

In theory, the competition role should indeed be the “least political”. But the reality to date has been otherwise. The dilemma lies in the fact that the competition portfolio provides the incumbent (who always arrives in Brussels from a political job at home) with arguably the greatest scope for media exposure of all the commissioners.

The role is a very special one, unique among portfolios.

DG Competition applies EU competition law. Vestager will be directing staff in her service on a daily basis, deciding which cases to take up and which to clear. The formal decisions which emerge at the end of investigations tend to the spectacular: cartel fines running into billions, the blocking of multinational transactions, state aid to nuclear power stations, and punishment of voracious monopolists. Those decisions are reviewable by the EU courts in Luxembourg. But DG Comp’s procedures must still respect due process.

Vestager’s predecessor Almunia is departing under the cloud of an Ombudsman investigation for outspoken public comment on a pending cartel case, which the complainant Crédit Agricole alleges has interfered with its rights of defence.

With the media always hungry for any morsels on open investigations, and a bevy of journalists continually traipsing around after him, Almunia often commented on the substance of cases still under examination by his staff, and with the companies yet to have their opportunity of reply.

Curiously, this issue seems to be a non-issue at other prominent antitrust agencies. Perhaps that’s because a number of them have rules and guidelines in place, so that everyone knows the playbook.

For example, the US Department of Justice’s Antitrust Division Manual states:

The policy of the Department of Justice and the Antitrust Division is that public out of court statements regarding investigations, indictments, ongoing litigation, and other activities should be minimal, consistent with the Departments’ responsibility to keep the public informed… Public comment […] should be limited out of fairness to the rights of individuals and corporations and to minimise the possibility of prejudicial pretrial publicity.

No Comment

Ms Vestager’s in-tray is filled with all manner of controversies which have the potential to propel her into the spotlight early and often. Her biggest customer is Google, with DG Competition presently looking at its alleged dominant practices in Search, the Android platform and other matters, while in other quarters, Big Data concerns keep it equally in the limelight, along with calls for Europe to develop tech champions to counter Silicon Valley giants.

And DG Competition’s State aid investigations into sweetheart tax deals struck by Member States such as Ireland, Luxemburg and the Netherlands with prominent multinationals such as Apple, Fiat and Starbucks have now come to the fore, as the commission reaches for any available angles of attack on Member States engaging in unfair tax competition.

Competition is a vital EU policy, and the Commissioner should be an outspoken public advocate for the brief. But the Commissioner has important decision-making powers and should act in a quasi-judicial way in relation to pending cases where she is the decision-maker.

It is one thing to announce a decision once taken, or the launch of an in-depth investigation. But it is quite another to comment on a case which is still under examination. Doing so will inevitably impinge upon the robustness of competition decisions emanating from the EU executive.

“No comment on pending investigations” is a simple but effective response. And much harder to ignore if enshrined in formal rules within the institution to which officials and commissioners must adhere.

Alec Burnside is Managing Partner and Anne MacGregor Special Counsel at Cadwalader, Wickersham & Taft LLP, Brussels

Panic is not answer to EU's security challenges

EU foreign ministers must choose between contaminating their civilian missions and operations with panic over security and migration, and reaffirming the EU's core values as a global actor for peace and development.

EU must recognise new force for Balkans destabilisation

EU foreign ministers will discuss Bosnia and Herzegovina on Monday. The EU has the opportunity to show that it is not a political dwarf in the Balkans, where not only economic, but also political reforms are necessary.

US steps in to clean up Cyprus

Cyprus has overlooked undertakings on bank probity made to the EU in the context of the 2013 bailout - but it might prove harder to get the US off its back.

Macron's 'European army': why is everyone talking about it?

Few people commented on one key point in Macron's statement: he did not justify the idea of a European army by the need to intervene in Africa, which would have been France's traditional approach. Instead, he invoked the Russian threat,

News in Brief

  1. Ireland extradites Polish man despite rule of law concerns
  2. Germany and France agree eurozone budget framework
  3. Austrian foreign minister: EU's Israel policy 'too strict'
  4. Soros and Kurz discuss Central European University move
  5. EU set to tighten rules on foreign strategic investment
  6. Macron repeats call for unified Europe in Bundestag speech
  7. US warns EU banks and firms against trading with Iran
  8. Merkel urged Romania not to move embassy to Jerusalem

Why 'Spitzenkandidat' is probably here to stay

The power of the parliament to 'appoint' the president of the EU Commission is new, highly-contested - and not universally understood. In fact, even some of the lead candidates to replace Jean-Claude Juncker are against it.

Stakeholders' Highlights

  1. NORDIC COUNCIL OF MINISTERSTheresa May: “We will not be turning our backs on the Nordic region”
  2. International Partnership for Human RightsOpen letter to Emmanuel Macron ahead of Uzbek president's visit
  3. International Partnership for Human RightsRaising key human rights concerns during visit of Turkmenistan's foreign minister
  4. NORDIC COUNCIL OF MINISTERSState of the Nordic Region presented in Brussels
  5. NORDIC COUNCIL OF MINISTERSThe vital bioeconomy. New issue of “Sustainable Growth the Nordic Way” out now
  6. NORDIC COUNCIL OF MINISTERSThe Nordic gender effect goes international
  7. NORDIC COUNCIL OF MINISTERSPaula Lehtomaki from Finland elected as the Council's first female Secretary General
  8. NORDIC COUNCIL OF MINISTERSNordic design sets the stage at COP24, running a competition for sustainable chairs.
  9. Counter BalanceIn Kenya, a motorway funded by the European Investment Bank runs over roadside dwellers
  10. ACCACompany Law Package: Making the Best of Digital and Cross Border Mobility,
  11. International Partnership for Human RightsCivil Society Worried About Shortcomings in EU-Kyrgyzstan Human Rights Dialogue
  12. UNESDAThe European Soft Drinks Industry Supports over 1.7 Million Jobs

Latest News

  1. Spain raises Gibraltar, as EU and UK talk post-2020 relationship
  2. Panic is not answer to EU's security challenges
  3. Dutch flesh out proposal for EU human rights sanctions
  4. EU cheerleaders go to Russia-occupied Ukraine
  5. EU must recognise new force for Balkans destabilisation
  6. Brexit dominates EU affairs This WEEK
  7. How the EU commission got tunnel vision on self-driving cars
  8. No-confidence calls against May put Brexit deal in doubt

Stakeholders' Highlights

  1. Mission of China to the EUJointly Building Belt and Road Initiative Leads to a Better Future for All
  2. International Partnership for Human RightsCivil society asks PACE to appoint Rapporteur to probe issue of political prisoners in Azerbaijan
  3. ACCASocial Mobility – How Can We Increase Opportunities Through Training and Education?
  4. Nordic Council of MinistersEnergy Solutions for a Greener Tomorrow
  5. UNICEFWhat Kind of Europe Do Children Want? Unicef & Eurochild Launch Survey on the Europe Kids Want
  6. Nordic Council of MinistersNordic Countries Take a Stand for Climate-Smart Energy Solutions
  7. Mission of China to the EUChina: Work Together for a Better Globalisation
  8. Nordic Council of MinistersNordics Could Be First Carbon-Negative Region in World
  9. European Federation of Allergy and AirwaysLife Is Possible for Patients with Severe Asthma
  10. PKEE - Polish Energy AssociationCommon-Sense Approach Needed for EU Energy Reform
  11. Nordic Council of MinistersNordic Region to Lead in Developing and Rolling Out 5G Network
  12. Mission of China to the EUChina-EU Economic and Trade Relations Enjoy a Bright Future

Join EUobserver

Support quality EU news

Join us