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No Less Than the Future of Competition Law Is at Stake in a Confused And TRADE SECTION hree interrelated themes dominate eu No less than rary European politics about Chinese competition, politics so far this year: the European Parlia- the future of growing protectionism in the US and loss of faith in ment elections in May and subsequent ap- competition law markets, globalization and multilateral institutions. pointment and confirmation of senior EU is at stake in a We are not talking here just about a threat to the leaders, Brexit, and the future direction of confused and established order posed by populist upstarts. The Tcompetition (antitrust) policy. shifting political French and German governments are calling for a Not long ago we would have said with some con- terrain, says new European industrial policy and fundamental fidence that 2019 will be an interesting year, but no Brunswick’s reform of European competition law. Unsurpris- more than that. Certainly, there will be European ingly, they reach for their own national models, the sir jonathan elections and appointments of new leaders in the Eu- German Ministererlaubnis political override and faull. ropean institutions. The Brexit negotiations will be the French politique industrielle volontariste. Is price finalized and the UK will leave the EU but remain the main criterion for judging competition or is in- closely tied to the European single market. The Euro- pean Commission’s DG Comp will continue to be the pre-eminent competition authority in Europe, se- cure in its role at the center of a mature system of law and policy, buttressed by a stable body of case law. We can no longer be sure of any of that. Brexit Questions for has turned into a nasty, protracted drama and no- one can say today with any degree of certainty what will happen. Meanwhile, the decision to prohibit the Siemens- Alstom merger has sparked great controversy and ILLUSTRATION: DAVID PLUNKERT DAVID ILLUSTRATION: added fuel to the fires already burning in contempo- EUROPE brunswick review · issue 18 · 2019 49 EUROPE novation, particularly in digital services, just as or Will the Council be given powers to overrule more important? Commission decisions? Or will all this blow over This crystallizes a debate that has been waxing as the New Hanseatic League (a bloc that includes and waning for decades and in which British influ- Denmark, Estonia, Finland, Ireland, Latvia, Lithu- ence played a major part: What is the purpose of ania, the Netherlands and Sweden) replaces the UK competition law and by what criteria should it judge as the bastion of competition and free trade, while corporate behavior and mergers? The negotiation the Franco-German machine stalls again? of the EU’s merger regulation in the late 1980s saw The Commission without DG Comp would be a all of these issues aired extensively. The regulation as much diminished institution, with far less impact enacted in 1989 bears some traces of the arguments on the European economy than it has today. This that raged at the time. diminution could take place in a wider context in Nevertheless, the final text of the regulation and which the Commission is downgraded to a less po- the way it has been applied ever since are rightly litical, more technocratic body, as some member seen as predominantly competition-based to the states want. exclusion of other policy concerns. Many in Europe There are contradictory arguments swirling viewed that outcome as an espousal of British views SO THE around. Some say the Commission has to choose be- and a victory for the competition Commissioner at CHALLENGES OF tween being political and enforcing the law; it can’t the time, the late Sir Leon, later Lord Brittan. More be both. The stability and growth pact in support of broadly I think it is fair to say that the influence of 2019 ARE the euro has been a fertile terrain for this debate: Is British lawyers, academics, officials and politicians ENORMOUS— saying “France is France” to explain breaches of the on the development of EU merger law over the last pact sensible politics or failure to uphold the rules? three decades has been considerable. INCLUDING We live today in a world where the Commission That era is about to come to an end. What we NOTHING broadly holds the ring between big and small mem- have taken for granted is open to debate and up for ber states, the pure letter of the law and practical grabs. European elections will take place in May. A LESS THAN TO politics, east and west, north and south. new President of the Commission will be designated DETERMINE It’s not textbook stuff, but would any textbook and the Parliament will question him or her about writer invent the European Commission as it is to- many things. Competition policy is bound to be one THE FUTURE day? And what would Europe look like without it? of them. A competition Commissioner will also be DIRECTION OF EU We should think carefully about where changes designated and face questions in Parliament. You can might lead before embarking on them. imagine the scene and some of the questions. “Will COMPETITION The Brexit saga illustrates this convincingly. The you undertake to propose amendments to the merg- LAW. current settlement of affairs in Europe, however er regulation? If so, what will they say? Do you agree hard to describe using the traditional categories of with this or that Government’s position? Do you political science, may be better than plausible alter- think Siemens-Alstom was rightly decided? Should natives and is certainly a marked improvement over there be an overriding public interest test to assess previous European dispensations. mergers? What will you do to promote and defend Meanwhile, look at the uncertainties in the UK European champions? Do you think you have the revealed by the Brexit debate and then think about right law and policy to put Europe in the forefront of the future direction of British competition law. What the digital economy?” will Britain do and how will it interact with EU Remember, there will probably be no Brits in law in cross-border situations? From the unilateral sight, and there will be many honorable (I hope) throwing open of borders advocated by some within members from new parties or ones outside the tra- the Conservative Party, to the much more regiment- ditional European framework of Christian Demo- ed economy favored by Jeremy Corbyn and his allies crats, Social Democrats, Conservatives, Liberals in the Labour Party, there are many policy options and Greens. open to the UK. So the challenges of 2019 are enormous—includ- Further afield, will US antitrust law be caught up ing nothing less than to determine the future direc- sir jonathan faull in the Trump administration’s way of dealing with tion of EU competition law. Will the Commission’s is Chair of Brunswick’s the rest of the world? Many of these issues have been DG Comp remain the main enforcer and guiding European Public Affairs aired before, only for passions to subside as the dif- team and is based spirit it is today? Will it be hived off and become an ficulties of fashioning alternatives proved insuper- in Brussels. He was a independent agency? Which bits of it? Only merg- senior official of the able. No one can be sure where we will end up, but ers? All antitrust? What about state aid? European Commission. we should all be prepared for a mighty debate. u 50 brunswick review · issue 18 · 2019.
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