Joseph Simons’ nomination as FTC Chairman: A European perspective

On the 19th of October 2017, President Trump nominated Joseph Simons as Chairman of the Federal Trade Commission (“FTC”), jointly with the nomination of consumer protection advocate Rohit Chopra and the chief counsel for Senator John Cornyn, Noah Philips.

Essentially, the nomination of the Joseph Simons as FTC Chairman is not only to be welcomed, but most importantly is illustrative of the differences that still prevail between the competition authority of the US and its counterpart in the EU – the Directorate General Competition (« DG Comp ») of the European Commission.

Indeed, Joseph Simons’s profile demonstrates that he is a suitable Chairman for the FTC given his expertise background and wealth of experiences on antitrust matters. As partner of law firm Paul Weiss Rifkind Wharton & Garrison LLP and co-chair of its Antitrust Group, Joseph Simons focused on antitrust both in litigation and counseling. He has extensive experience of the FTC thanks to his role, from 2001 to 2003 of Director of the Bureau of Competition of the FTC, after having joined the FTC since the late 80s.

As an expert of antitrust and merger, Joseph Simons has accumulated a large experience by representing clients in the law or by his position as the chief antitrust enforcer during his time at the FTC. Therefore, having gained both public sector and private sector expertises on antitrust, Joseph Simons has appropriately appeared, for the White House, to be the perfect fit for the Chairmanship of the FTC.

The other great antitrust enforcer in the US – the Antitrust Division of the Department of Justice, unique body in charge of criminal matters for antitrust enforcement – is also influenced by technical expertise rather than by political activism in antitrust matters as evidenced by Makan Delrahim’s recent nomination.

On the contrary, the EU counterpart of the FTC Chairman Joseph Simons – Margraethe Vestager – has a political, rather than technical, background. After becoming Minister of Education in Denmark at only 29 years old, Margraethe Vestager was elected as Deputy Prime Minister of Denmark from 2011 to 2014, and Competition Commissioner since 2014.

Furthermore, the choice of Simons in the US comes at the expense of Maureen Ohlausen, the current Acting Chairman of the FTC, who has implicitly campaigned for the FTC Chairmanship. The conservative lean of Ohlausen might have played at her disadvantage since a more technical, rather than a political, profile was sought as evidenced by Jo Simons’s nomination. Of course, the choice of the commissioner at the FTC highly depends on the political affiliation of the candidate given that Democrat/Republican seats are reserved alternatively.

Be that as it may, the political activism of the candidate within his/her own affiliation is quite irrelevant at the FTC, as technical expertise on antitrust matters appears to be the influential criterion as explained in the table below:

 

EU

( DG Comp)

US

(FTC)

 

Comments

 

 

I/ 

Institutional independence of the entity

+ +++

The intrinsic independence of the FTC as agency departs from the DG Comp which forms an integral part of the European Commission since the head of the DG Comp is a member of the European Commission. Therefore, there is no institutional independence of the DG Comp as enshrined in the mission statement of the FTC.

II/

Political irrelevance of the nominations

++

+

The nomination of the Competition Commissioner is not really influenced by the political affiliation of the President of the European Commission given that a relative balance of right-wing/left-wing Commissioners is witnessed across the members of the European Commission. On the contrary, the Chairman of the FTC is considered by his/her political affiliation by the President of the US when the nomination is taken.

III/

Political balance within the entity

+

++

The head of the DG Comp is either left-wing or right-wing and other members are considered as civil servants without any reference to their political affiliations. Therefore, the entire DG Comp seems to transpire the political affiliation of his acting head. On the contrary, the FTC is self-limited in engaging into one specific political line since the Commissioners are equally represented amongst Democrats/Republicans. The Chairman of the FTC is therefore limited by insider’s political opponents so that a more technical stance reaches unanimity more easily.

IV/

Political activism

of the entity

+++ +

Because of the political role of the Commissioner of the European Commission as head of the Competition Policy, DG Comp endorses a duty to deliver the Competition Policy agenda agreed together with his/her fellow Commissioners in industrial policy, innovation policy, in consumer policy, etc… The agenda and programme of the Commissioner are therefore ‘validated’ by the President together with the majority of the Commissioners. On the contrary, the agenda and plan of the FTC’s Chairman is set independently and de facto favours technical expertise which favours political neutrality given the political zero sum game that is played amongst FTC commissioners.

Consequently, from these different institutional designs, the competition policies carried out in either side of the Atlantic differ greatly as recently evidenced by similar cases on digital competition where findings are unfortunately contradicting across the FTC and DG Comp (for instance, Google Shopping cases in the EU and the US).

 

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