Revolving doors – under investigation, staying friends, and bad surprises

This year, a number of senior officials moved from some of Europe’s most important antitrust regulators into private practice.* While these have not been the first times that high-ranking officials switched sides, several departures across Europe took place around the same time lately and regulators seem to deal with them quite differently.

The European Commission – under investigation

Three recent prominent departures at the European Commission stand out:

  • The former Deputy Director-General for State Aid (and before that Mergers) joined a law firm as partner in June 2021. For those not familiar with the structure of the Commission’s Directorate-General for Competition, a Deputy Director-General (also called “DDG”) is a senior figure in the hierarchy and sits just two levels below the Commissioner for Competition.
  • The former Deputy Director-General for Mergers (who had held other DDG positions previously) joined a law firm as Of Counsel in September 2021, after having retired from the European Commission a year earlier.
  • Finally, news broke this month that the former Head of Unit for antitrust in the field of IT, the internet and consumer electronics and acting director for cases regarding information communication and media, who was one of the Commission’s key experts in its Google cases and in dealing with standard essential patent cases, is also set to join a law firm (interestingly being an economist and not a lawyer by training).

Officials leaving the Commission remain bound “by the duty to behave with integrity and discretion” (as set out in Art. 16 of the Staff Regulations). The regulator even has the power to forbid job moves or give its approval only subject to conditions.

The European Commission has not communicated the departures officially via a press release or the like. Upon request, at least regarding the first and the last case listed above the Commission confirmed that it authorised the job moves. Still, the number of recent departures has led to the European Ombudsman asking the European Commission for a meeting to discuss “in detail” how the Commission takes decisions regarding staff applications to switch employers. The Ombudsman has prepared a list of 13 questions on how exactly the European Commission’s process works and how it is dealing with potential conflicts of interests. This builds on the review of 100 Commission files as part of a broader inquiry launched by the Ombudsman early this year into how the Commission handles revolving door cases. Already in 2019, the Ombudsman called for the Commission to make a more “robust assessment” when senior staff leaves for the private sector. Apparently, the Ombudsman is not convinced the Commission has taken this request seriously enough.

On top of that, a group of 37 Members of the European Parliament submitted questions to the European Commission last week on the enforcement of the revolving door rules, pointing out that in 2019 the regulator rejected “only 3 out of 363” requests from former officials to take up new jobs and that the September job move listed above took place “without the Commission having given any form of approval for the activity”.

The CMA – friendly farewell

The former Executive Director for Markets and Mergers at the UK Competition and Markets Authority (CMA) left the regulator in April and will join a law firm as Special Advisor in November. Before joining the CMA, she had already been a partner at another law firm and her replacement will also join from a partner position at a law firm.

Remarkably different from the European Commission, the CMA announced the departure in an own press release, with quotes from both the CMA’s Chair and the CMA’s Chief Executive praising the leaving official and wishing her farewell. She herself is also quoted commending her former employer and wishing it success.

The Autorité de la concurrence – not so friendly

The head of the French Autorité de la concurrence left the competition regulator last week. Different from the other cases described above, it was not her choice to leave. Her term ended and she was reportedly “surprised” to learn that her mandate would not be renewed.

There has been some speculation that she had to leave because her views were not in line with the one’s of the French government, in particular when it came to taking a softer approach in merger reviews in favour of building national/European champions. Unsurprisingly against this background, there seems to have been no flattering official press release by the Autorité on the departure. However, a 13-page valedictory speech by the former official was published on the regulator’s website.

Different cultures, different doors

All these cases show how different the approaches towards departing senior officials can be. At the European Commission, the general expectation seems to be for senior officials to stay with the Commission throughout their careers and retire stay retired when retirement is due. Departures to the private sector are sensitive and under increasing scrutiny.

In the UK, things work differently. At a regulator regularly taking in secondees from law firms and also recruiting senior officials from their ranks, switching sides is not necessarily frowned upon. The UK approach seems to be similar to the US, where moving back and forth between the public and private sector is not uncommon and to a certain extent even welcomed as a contribution to facilitating cooperation (or at least the understanding of each other’s’ respective positions) between public authorities and the private sector.

The recent departure of the head of the French regulator is somewhat unique. Should the speculation be true, it again shows how much antitrust and politics are intertwined these days (and how regulators might be under political pressure to take decision fitting the political agenda).

* The names of the individuals referred to in this piece are publicly known. I will nevertheless respect their privacy. This is not meant to be sensationalist piece about individuals, but rather a piece about the different approaches to revolving doors.

[Photo by Artem Sapegin on Unsplash]