the eu antitrust has a new head, should u.s. technology giants continue to be wary | global figures
2024-10-06
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last month, when european commission president von der leyen introduced the 26 european commission members she nominated, the new competition commissioner and spanish deputy prime minister teresa ribera was the first on the list.
as the first executive vice-president of the european commission who will be responsible for "a clean, just and competitive transition", rivera's upcoming position has been described by many european media as possibly the "most powerful position in the history of the european commission". in addition to antitrust enforcement, she will also be in charge of europe's green transition, ensuring that the eu simultaneously decarbonizes and industrializes the economy.
according to von der leyen’s mission letter, rivera needs to reform the eu’s competition policy to ensure that it supports the innovation and competitiveness of european companies and enables european companies to lead the world.
in the previous decade, european antitrust enforcement, led by outgoing competition commissioner margrethe vestager, was tough and stringent. and in recent interviews, rivera has revealed her different direction in law enforcement. "(the rules) can be relaxed in many ways, but always to strengthen european capabilities," rivera said. "we will reform these rules to increase flexibility and give the industry a strategic european dimension."
ninette dodoo, head of freshfields bruckhaus deringer's china antitrust practice department, told china business news that according to von der leyen's remarks after her re-election, the competitiveness of european companies in global competition has declined, which meanseurope needs new ways and means to advance competition policy, “to support european companies to scale up in global markets and ensure a fair operating environment in europe.”
european commission's position
rivera has previously focused much of his career on climate change policy. as spain's ecological transition minister, rivera oversaw the closure of spain's coal industry and negotiated the phase-out of nuclear power by 2035. after chile withdrew from 2019 united nations climate talks at the last minute, she volunteered for madrid to host the conference and won exemptions for spain and portugal from eu electricity market rules during the gas crisis.
rivera is still relatively new to the field of competition policy, but she already has a very clear point of view.
"europe's competitiveness issues cannot be solved by 'champion companies' from three or four countries. we need sufficient scale to compete in the international market, but we also need the good functioning of the internal market to build a relatively balanced business among all parties." ecosystem," she also attacked the eu's merger rules, saying it would shorten the time it takes to review deals.
rivera's position also echoes von der leyen's recommendations for her work in the mission letter, some of which run counter to positions on the antitrust agenda under vestager over the past decade.
specifically, von der leyen asked rivera to review the horizontal merger rules; further simplify the state subsidy policy while maintaining a level playing field; pay attention to the challenges faced by small and medium-sized enterprises and medium-sized enterprises, especially those caused by "killer acquisitions" risks; strengthening and accelerating enforcement of competition rules, focusing on the most distortive subsidies and practices, while pushing to accelerate the authorization of subsidies and transactions in strategic areas (such as artificial intelligence); working with other committee members to "vigorously" enforce the foreign subsidies regulation (fsr); actively promote cooperation among global competition agencies; respond to the challenges and dynamics of digital markets and conduct “quick and effective enforcement actions” under the digital markets act.
in addition, von der leyen specifically reminded rivera to refer to the "the future of european competitiveness" report she commissioned from former italian prime minister mario draghi. the core theme of this report is to simplify and reform competition policy to strengthen europe's ability to compete with global competitors.
in draghi's report, he advocated for promoting growth and innovation within the eu through a realignment of competition and merger review policies, taking into account geopolitical and supply chain threats. the report emphasizes the importance of alignment in a single market and therefore recommends easing m&a restrictions in strategic industries such as telecommunications and defense to achieve industrial policy goals and create european "champions" that can compete in global markets.
in addition, draghi's report also said that existing merger review and antitrust investigation procedures are too slow and complex, especially in rapidly innovative industries such as technology and energy. draghi suggested speeding up the review process in these areas to ensure europe can respond quickly to market changes. he also recommended reinstating the new competition tool (nct) to allow regulators to proactively respond to anti-competitive behavior in key industries to address structural competition issues such as tacit monopolies and market entry barriers, particularly in markets with strong network effects middle.
the most different thing from the past decade is that draghi proposed the introduction of an "innovative defense" mechanism in m&a transactions., that is, if the transaction will promote innovation, the transaction should be approved based on this premise. he believes that innovation can be seen as an efficiency that is enough to offset the possible negative impact on competition. the current competition commissioner, vestager, is often skeptical of innovation arguments and has therefore rigorously scrutinized and blocked a number of high-profile mergers, such as that of siemens and alstom.
du ning told china business news that the current discussion on competition policy in europe mainly focuses on two aspects. on the one hand, supporters hope to help intra-european companies grow into industry champions; on the other hand, they also want to ensure that competition policy fulfills its main responsibility, which is to protect competition rather than competitors, thereby creating a fair environment and promoting corporate innovation.
confrontation with tech giants
before being formally appointed, rivera will have to undergo scrutiny by the european parliament, including answering written questions and attending hearings this month. if passed, she would take on the difficult task of going head-to-head with big tech.
while in office, vestager took a series of aggressive antitrust enforcement actions against large technology companies. for example, google was fined three times with a total amount of more than 8 billion euros; apple was accused of gaining unfair competitive advantages through illegal tax benefits. the european supreme court recently ruled in favor of the european commission’s order to impose 13 billion euros in taxes on apple; it accused amazon the abuse of seller data on its platform to compete for self-operated products has led to an unfair market environment; apple, google and meta were also severely criticized by vestager for failing to comply with the digital market act.
this task will not get easier during rivera's tenure. according to a report by uk law firm herbert smith freehills, digital markets have been the focus of eu competition law enforcement in recent years and are subject to new regulations under the digital markets act, and rivera is tasked with responding to these challenges and dynamics in the market, including the platform economy and data-driven business models, and ensure that the commission takes swift and effective enforcement action under the act.
dunin believes: "under the recent leadership of the eu, we can see the trend of the whole legislation becoming tougher. whether it is related to mergers and acquisitions in the aviation industry or the digital field, the foreign subsidies regulation and the digital markets act " and other laws are pushing the eu's legislation in a more stringent direction. "
lawyer wu han, a partner at king & wood mallesons in beijing, told china business news that the eu is currently trying to regulate large technology from multiple dimensions such as antitrust, anti-unfair competition, protection of the interests of small and medium-sized enterprises, consumer rights protection, and product compliance. platform enterprise. "the successive introduction of the digital markets act, the digital services act and the eu artificial intelligence act can also confirm the above perspective." he said.
wu han believes: "to put it simply, the eu is worried about the way technology platform companies use platforms and artificial intelligence, because based on network effects, their actions have a greater impact on society. from the perspective of the structure of an intelligent society , there will be more and more levels of social supervision, such as physical society and virtual society, physical currency and virtual currency, etc., and the dimensions will also become more and more abundant (such as technology ethics). large social platforms (such as google and amazon, etc.) are not only used. as regulatory targets, regulators may also use the technology and data of these platforms as regulatory tools.”
(this article comes from china business news)
