Vesatger 2.0 - The New European Competition Commissioner
On 10 September 2019, the new European Commission President-Designate, Ursula von der Leyen, was widely expected to nominate the new - and 13th - European Commissioner for Competition Policy.
There was speculation as to which of the nominees for the 2019-2024 European Commission would "get the nod" to succeed the incumbent Competition Commissioner who is the Danish politician, Margrethe Vestager.
The Competition Commissionership is one of the most important portfolios from a business perspective. The Competition Commissioner is central to deciding which mergers are blocked, what State aid is to be recovered as well as which companies are to be fined for cartels or abusing dominance.
Whoever was to fill the shoes of the Dane, would have a hard act for follow. There have been some titans in the job - from von der Groeben (the first Competition Commissioner) to Borschette to Sutherland to Van Miert to Monti. But Vestager (only the second woman to hold the post after Neelie Kroes) had a higher profile than most.
The Dane had a front of house role in the 2014-2019 Juncker Commission. She focussed heavily on State aid with, for example, the Ireland: Apple case which ordered Ireland to recover State aid with a greater value than all the combined competition fines ever imposed by the European Commission. The economics graduate from the University of Copenhagen also led a series of cases on alleged abuse of dominance involving some of the best known hi-tech and financial services companies in the world. Some of the fines imposed on US tech corporations were the highest on record. She appeared to have a real focus on digital and hi-tech companies.
There was widespread speculation in Brussels that Vestager was moving on to a new role within the Commission and leaving competition behind. It was a surprise therefore to many when von der Leyen announced that Vestager was retaining the Competition portfolio in the 2019-2024 Commission. Vestager is to be a Vice-President of the new Commission. The twist is that she will also coordinate the new Commission's "whole agenda on a Europe fit for the digital age and be the Commissioner for Competition, supported by the Directorate-General for Competition". Her role is entitled by the Commission as "Europe Fit for Digital Age".
As President-elect Ursula von der Leyen said: "Digitalisation has a huge impact on the way we live, work and communicate. In some fields, Europe has to catch up - like for business to consumers - while in others we are frontrunners — such as in business to business. We have to make our single market fit for the digital age, we need to make the most of artificial intelligence and big data, we have to improve on cybersecurity and we have to work hard for our technological sovereignty."
The next five years should see a continued focus by Vestager on digital competition issues. One can anticipate that Article 102 of the Treaty on the Functioning of the European Union – the rule on abuse of dominance – will be invoked often. One could see tensions between the EU and the USA because so many of the cases would be likely to involve US companies – that is not an anti-USA bias by the EU but a reflection that most of the tech giants are from the USA.
Those outside the digital and tech sector should not think that they will be immune from competition scrutiny. Vestager will still be rigorous and diligent in tackling suspected breaches of competition law from any economic sector. We can sense that Vestager's fondness of "fairness" in her first term of office will remain a feature of European Commission competition policy.
So, much will remain the same but there will be changes. In an uncertain world, we can understand the future better than we might otherwise do because we are not dealing with a new broom but a well-experienced Commissioner who has held the portfolio during the last five years. So this will be, in terminology beloved of the tech and digital sector, less Vestager 1.0 and more Vestager 2.0.
Vestager's expected tenure of 10 years in the portfolio would make her the longest serving Competition Commissioner ever. Her imprint on EU competition law which is already strong, will become even more pronounced and significant. EU competition law and policy will become even more prominent in EU business life over the next five years.
For queries or for further information on this topic please contact Dr Vincent Power, Partner, EU, Competition & Procurement, or any other member of A&L Goodbody's EU, Competition & Procurement team.
Date published: 11 September 2019