Thursday

21st Feb 2019

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.

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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

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