We are now well past the mid-point of Commissioner Vestager’s tenure as European Commissioner for Competition. Let us assume that – as with all of her predecessors, and regardless of merit – she will not be reappointed for a second term in the post, so that by the end of 2019 we will have a new Competition Commissioner.
What this means, among other things, is that if an antitrust or State aid case has not yet started, then it is in practice impossible to finish it within her term. That means that the Commissioner’s margin of manœuvre in establishing a legacy is mostly limited to the cases that we already know about.
So what do we know about Commissioner Vestager – and can we start predicting what the next two years of competition enforcement will look like?
Commissioner Vestager didn’t have an easy start. Early on her tenure, the tax issues (which later became known as Lux Leaks) nearly hijacked her agenda. She turned those around, though, and has pushed the “political” mandate that President Juncker endowed on this Commission, which some considered pushing the boundaries of the law: no-one can look at the State aid tax cases (Apple, Amazon, Starbucks) and doubt that European State aid law was thrown into the global spotlight in 2016 when the Commission concluded that Ireland had granted illegal tax benefits to Apple amounting to an unprecedented € 13 billion which, according to the Commission, enabled it to pay substantially less tax than other businesses. It is likely that these specific cases represent only the tip of the iceberg, with Commissioner Vestager stating that the Commission is currently analysing over 300 different tax cases.
Furthermore, when she was appointed, the Commissioner inherited a portfolio of pending antitrust cases that was less than enviable given their lack of easy answers. Gazprom and Google – to take the most high profile examples – were difficult cases in terms both of their competition law analysis and their political implications. Gazprom continues, and only the first salvo in Google has been fired: more are expected. The Commissioner will surely want to finish both cases before her term expires.
In the cartel area, she closed a number of high-profile investigations, CDS, Cement, BioEthanol, as the evidence was not there to support the theory of harm, showing she is prepared to move on when appropriate. The Commissioner has also used the settlement procedure more broadly and innovatively. When the Commission imposed its highest fine ever (€ 2.93 billion) on truck producers in 2016, she agreed to offer a late-stage settlement after the statement of objections was sent, contrary to established settlement procedures. She also extended settlements (though by another name) to non-cartel cases when she used a settlement-type procedure for the first time in an abuse of dominance case (Altstoff Recycling Austria) in September 2016 and in a merger case where parties allegedly had provided incomplete information (Facebook/WhatsApp).
But what is likely to be Commissioner Vestager’s “signature” legacy? Clearly, she considered the Digital Single Market as a key enforcement priority early on, and she has developed that throughout her three years in office.
First, in addition to a number of investigations still open against Google, the Commission published its Final Report in the labour-intensive e-commerce sector inquiry in the first quarter of 2017, and opened a range of follow up cases. Focused on territorial restrictions and price maintenance concerns, the sector inquiry and its follow up cases will help to define the rules for online commerce in Europe for the next decade.
Second, the Commissioner has stressed the importance of looking at significant technological developments such as the availability and use of data, and the use of artificial intelligence (including in the processing of data). The Commission looked at data closely in the context of the Microsoft/LinkedIn transaction, ultimately concluding that there were no relevant concerns. However, the use of data remains on the Commissioner’s radar.
These cases and policy initiatives certainly push the boundaries of the law. The Commissioner appears to view part of her role as being to push the boundaries, particularly in the area of State aid, where public enforcement is effectively the only enforcement tool.
Turning to style and priority-setting, from the way that the Commissioner talks about her cases in public, she takes her quasi-judicial role very seriously and does not like to prematurely discuss her conclusions. Though some of her recent statements about large US tech companies might give pause in reaching that conclusion. We also have seen her frequent references to “fairness” in her advocacy (for example, here and here) which is unsettling to those who believe that there is nothing inherently “fair” about competition and who fear that cases are being prioritised on the basis of nothing more than the Commissioner’s conception of “fair”.
I am not sure whether that criticism is valid. The Commissioner may choose to prioritise cases on the basis of what she believes to be “fair”, and she certainly justifies her decisions on the basis of what she believes to be “fair”, but it is not easy to point to decisions that have been decided purely on the basis of fairness as opposed to a strict application of the competition rules. For example, she has taken a narrow approach in the case against Google to focus on a specific area while continuing to evaluate other areas.
Some might say that the Commissioner risks of pushing too far. That is a fair debate that I think the Commissioner would welcome. After all, she does want to do what is fair.