After her confirmation hearing in front of the European Parliament on Tuesday 8 October, Magrethe Vestager looks certain to remain as Competition Commissioner for a second term and to combine that with a broader responsibility for digital policy development. Both the second term and the combination of the competition portfolio with a policy brief are unprecedented in recent decades.

Several key points, including the way in which she intends to manage digital matters and a potential conflict of interest, emerged from the hearing.

On her outlook on EU competition: Vestager emphasised that the competition landscape in the EU was a values-based system and that in her view competition rules “can make markets work for people”.

… and on her looking out for EU competition: Vestager said she was determined to ensure, through public procurement and other tools, that foreign state ownership and subsidies do not undermine fair competition in Europe.

On remedies, breakups are hard: Vestager stressed that taking measures such as breaking up companies was very much a last resort and that she had an obligation to use the least intrusive tool possible to secure the desired outcome.

… and other remedies may become available: Separately she also suggested that the Commission might be able to adopt some of the remedies-based strategies currently used by the UK Competition and Markets Authority (“CMA”). The CMA uses it powers to impose market-wide remedies without actually finding specific competition law infringements or fining companies. Vestager referred to these tools when questioned on how DG COMP could speed up the Commission’s reactions to avoid distortion in the single market, enabling EU companies to compete with US tech giants.

On taxation, global agreements are the carrot: Vestager said she hoped that the Commission could reach some sort of global agreement on digital taxation, following the failure earlier this year to implement a digital tax. However, Vestager stressed that if no effective global agreement can be reached by the end of 2020, the EU should be willing to act alone on coming up with a digital tax.

… and State aid enforcement is the stick: Vestager confirmed that, in the meantime, the Commission still had open state aid cases and has just asked Member States to provide the Commission with a status on how they are applying tax rulings.

On digital, move quickly: Vestager pledged that, within her first 100 days in office, she would publish proposals for the Commission’s framework for ethical design and application of artificial intelligence.

… and update regulations: Vestager also outlined plans to introduce a new Digital Services Act that would update liability and safety rules for digital platforms. She noted that the last piece of relevant legislation dated from 2000. Vestager has not yet worked out the details of a new Digital Services Act, but suggested that it should ensure that consumers’ fundamental rights are safeguarded. For instance, Vestager warned of “surveillance capitalism”, i.e., search engines such as Google tracking internet users’ personal preferences and utilising the information for ad-driven businesses. 

On potential conflicts of interest: Some MEPS – in particular from the European People’s Party (EPP) – expressed concerns that there could be a potential conflict of interest between her competition enforcement role in DG COMP and her digital policy role. Vestager said that this had been the first question she had asked herself on being offered the dual role, but she concluded that it would not be a problem. She indicated that “independence in law enforcement is non-negotiable”; implying she will abide by this core principle. Further, she observed that the entire College of Commissioners scrutinises the decisions of DG COMP, saying “every decision is subject to not one time but two times scrutiny if need be”.

… not everyone was convinced: This failed to satisfy the EPP and, after the hearing, Esther de Lange MEP (EPP Group Vice-Chairwoman responsible for Economy and Environment) released a statement saying that Vestager had not convinced the EPP that she would not have a conflict of interest.

And on next steps: The Conference of Presidents was to decide on 17 October if the European Parliament has received sufficient information to declare the hearing process for all Commissioners closed and, if so, whether a plenary vote should follow on 23 October.

… the best laid plans: The timetable has been thrown into doubt by Parliament’s rejection of three countries’ nominees, in particular France’s Sylvie Goullard. This may lead to the current Commission term being extended beyond the currently expected 31 October.