In the United States, the European Union and the United Kingdom, recent months have seen a flurry of stories about the politicisation of competition law enforcement. These reports have caused particular concern because they relate to enforcers that are highly regarded internationally and which operate in jurisdictions historically seen as predictable and rigorous in their competition law enforcement.
In this post I want to categorise the various examples of politicisation – or alleged politicisation – in order to establish which we should worry about and what should be done about them. (Ariel Ezrachi and Maciej Bernatt have also published a working paper with a longer and more scholarly attempt to do this. I think their categorisation is very helpful and mine is just a different way of thinking about it.)
I am using the term ‘politicisation’ quite broadly here to cover anything which suggests that the enforcement of antitrust laws may have been influenced by considerations other than the protection of competition, or that it has been based on anything other than technical legal and economic analysis by an independent antitrust authority, and that this has been done at the direct or indirect behest of politicians.
- Language
The first type of ‘politicisation’ is not about enforcementitself but the language used to describe its goals and its benefits. For example, the Chair of the U.S. Federal Trade Commission, Andrew Ferguson, raised eyebrows recently when he said in a speech to the Hungarian competition authority that their task was “not merely, and not even principally, to preserve a fair and competitive marketplace” but to preserve and strengthen “civic bonds” between citizens.
That kind of language can seem jarring to those who see antitrust as focused narrowly on promoting consumer welfare but it does not necessarily tell us much about the enforcement stance that Ferguson favours. Indeed, in the panel discussion on politicization at the recent American Bar Association antitrust spring meeting, one participant argued that for all Ferguson’s rhetoric the FTC’s approach to enforcement under his leadership had been standard fare: “meat and potatoes”.
When I was at the CMA, depending on the priorities of the government of the day, there were periods when we put more emphasis in our public communications on the role of competition in promoting investment and growth, and other periods when we put more emphasis on its role in keeping down the cost of living for lower-income households. This was part of our effort to build political support for competition and for competition law enforcement.
What makes this possible is that as Andrea Marván Saltiel, the head of Mexican CNA, has pointed out, the many benefits of competition mean that it can contribute towards a wide variety of public policy objectives and it should be equally supportable by politicians of the left and the right. When the leaders of competition authorities talk about the benefits of antitrust in different ways, it does not necessarily mean that enforcement is being politicized. It may reflect different national traditions and different domestic political priorities, and it can serve as a way to strengthen the democratic legitimacy of antitrust enforcement.
- Prioritisation
Another way in which an antitrust agency can be thought to be politicised is through how it prioritises its work and selects its cases.
For example, in the UK, the previous Conservative government encouraged the CMA to prioritise enforcement in the digital economy and it also asked it to conduct a market study into housebuilding. More recently the current Labour government has asked the CMA to conduct a market study into dentistry.
Appearing to defer to the government on such requests would cause occasional concern at the CMA board but I think it is reasonable that, when there is public concern about whether competition is working well in a particular sector, the elected government should be able to ask the UK’s main group of taxpayer-funded competition specialists to look into it. The key condition is that, having made the request, the government must then allow the competition authority to conduct its investigation independently.
A ‘politicised’ approach to prioritisation might also mean antitrust agencies focusing on areas that, at first glance, constitute a departure from focusing on consumer welfare. For example, in the United States, President Biden encouraged the FTC and the DOJ to “promote the interests of American workers, businesses, and consumers” rather than consumers alone. However, the things Biden wanted the agencies to do in their “pro-worker” antitrust – tackling corporate consolidation, non-compete agreements and overly restrictive occupational licensing – were consistent with standard antitrust analysis. Competition was not being traded off against another value.
- Policy trade-offs (at policy-setting level)
Things get more complicated when politicians want to trade competition off against another policy objective, for example protecting jobs or creating ‘national champions’.
In recent decades antitrust enforcers, practitioners and scholars have been largely united in seeing such efforts as ill-conceived. Even if allowing two powerful companies to merge might be good for the employees of those companies, if the overall effect of the merger is damaging to productivity it will not help employment across the economy as a whole.
There is now a live debate on whether the EU’s merger guidelines should be relaxed in order to make it easier to create ‘European champions’, as in the failed attempt to merge Siemens and Alstom, which could compete more effectively against Chinese or American companies in global markets. However, as my Brunswick colleague Paul Csiszár pointed out here, the problem in Siemens/Alstom was not that the existing merger guidelines prevented the Commission from taking into account arguments about technological change or likely entry by Chinese companies. It was that the Commission found the evidence put forward by the companies did not support those arguments and would not outweigh the likely effect of the merger in increasing prices for European customers. And the Commission would argue that subsequent developments in that market have proved its judgment right.
To relax the guidelines with the aim of allowing such mergers to proceed would therefore mean accepting the risk of higher prices for European consumers on the basis that this is a price worth paying for building stronger European companies. The draft guidelines would also put the Commission in the business of balancing a range of public policy objectives, including resilience and sustainability. Independent regulators and enforcers have traditionally taken the view that this weighing of policy objectives should be done by elected politicians rather than themselves, especially when distributional impacts are involved, and this in turn suggests that such a policy shift should only be effected on the basis of legislative change following proper democratic debate. Yet it is now being done as part of a technical review of merger guidelines, proposed by the (unelected) Commission and responded by largely by the (unelected) advisory community.
In the UK there is a slightly different debate. When the independent competition regime was established by my old boss Gordon Brown, the main targets of enforcement were domestic incumbents while the beneficiaries were international companies seeking to enter the British market, so a robust competition policy was either neutral or positive for our foreign policy. But in more recent years the main targets of enforcement appeared to be big American companies, and this came just as the UK’s alliance with the US was coming under increasing strain. This created a trade-off between competition policy and foreign policy that the CMA lacked the expertise or the mandate to resolve. The (elected) government therefore issued a new strategic steer to the CMA which among other things called on it to prioritise the cases where it can make the biggest difference to UK consumers and to take into account the approach being taken by other agencies internationally in order to avoid duplication or incoherence.
One can agree or disagree with the positions being taken by British and European politicians on the above issues. But since antitrust authorities often make the point that it is the job of elected politicians rather than themselves to make trade-offs between different policy objectives, they should not complain when politicians seek to do precisely that. If anything, we need more politicisation in the sense of a fuller democratic debate about the trade-offs being made. If we think politicians are getting it wrong, we cannot tell them that they have no place in the debate. It is up to the rest of us in the competition community to engage and win the argument for competition in the public square.
- Policy trade-offs (in individual cases)
One challenge in having the above debate with politicians is that competition policy is an area of low political salience. Most of the time, most politicians are not interested in having a discussion about how it ranks with other policy priorities. That often only changes when it becomes an issue in a live case, for example in the furore over Microsoft/Activision, when the CMA was accused of making Britain a less attractive destination for investment.
In my time at the CMA, when we published our Annual Plan we would ask the Business and Trade Select Committee if they wanted us to give evidence so that they could hold us to account. They would politely decline on account of how busy their agenda was, and from 2019 there was a four-year gap in which our Chair and CEO did not appear before the Committee at all. Yet when the CMA prohibited Microsoft/Activision, Marcus Bokkerink and Sarah Cardell were summoned to appear immediately.
The low political salience of competition policy means that when politicians get involved they tend to do so fleetingly, in individual cases. But this is one of the least beneficial forms of political involvement because, rather than reflecting a deliberative attempt to balance competing policy priorities by those with an electoral mandate to do the balancing, there is a high chance that it could be distorted by lobbying by those with a vested interest in the outcome of the specific case.
Therefore, while competition authorities should be open to political steers at the overall policy-setting level, they need to find ways to protect their independent decision-making in individual cases. First, they should actively encourage politicians to get involved in debates such as those on the EU merger guidelines and the UK strategic steer. The greater the democratic legitimacy for the guidelines that an agency applies, the stronger the grounds it will have to resist political intervention when it applies those guidelines in individual cases. Second, there should be legal routes for transparent political intervention in individual cases when an antitrust authority is not competent to make the relevant trade-offs e.g. the ‘public interest’ considerations allowing ministerial intervention under the Enterprise Act and the National Security and Investment Act. Third, antitrust authorities should have transparency policies which require publication of any political attempts to interfere in cases outside these specified legal routes.
- Non-policy based intervention at case decision level
We now come to the most damaging type of political intervention. This is where politicians seek to get involved in an individual case and they do so not on policy grounds but in order to reward a favoured political contact. For example, there have been allegations in the U.S. that lobbyists have been able to secure favourable outcomes for their clients by playing golf with the President or by threatening the head of the DOJ antitrust division.
This is damaging because, as Bill Kovacic, has argued, “There has to be an accountability regime but you can’t have political leadership telling [an antitrust] agency to punish enemies, reward friends and otherwise simply be party to a negotiation between top political leadership and individual business interests. Once you do that, confidence in the entire system of government tends to erode.”
And there is a further problem. If politicians do interfere in a case in this way, they are hardly likely to admit publicly that this what they are doing. They are likely to claim that they are making an intervention for policy reasons as under category four above, making it hard to tell where the truth lies. (Was the clearance of HPE/Juniper a “scandal” in which senior DOJ officials “perverted justice” or was it a “legitimate enforcement judgment” based on an “intelligence assessment”?) In practice, it may be impossible to tell the difference between interventions in categories four and five – and this makes it even more important to put in place the steps I advocate in the above section, particularly around transparency.
- Personnel
Some of the most controversial examples of political influence recently have related to personnel.
In almost all antitrust authorities, as in central banks, there is a role for the government in the appointment of their leaders. Even the strongest advocates of their independence usually take the view that the political appointment of their leaders is what gives them their democratic legitimacy.
In some cases, such as the U.S. Department of Justice, its leaders serve at the pleasure of the elected government and can be removed at will. In others, such as the U.S. Federal Trade Commission and the UK CMA, the agency’s leaders serve for fixed terms and this is intended to reinforce their independence.
It was therefore highly unusual when the UK government sought to remove the CMA’s Chair, Marcus Bokkerink, in January 2025. In retrospect, this act itself may not have made all that much difference to the CMA’s enforcement stance. A policy shift was already well underway following the blowback over the CMA’s decisions in Microsoft/Activision and several AI cases. Sarah Cardell set out the new agenda in her Chatham House speech of November 2024, two months before Bokkerink’s departure, and the government went on to issue its new strategic steer to the CMA in May. Arguably, the defenestration of Bokkerink made more of a difference to the boards of other UK regulators, who sat up and took notice of what might be in store for them if they failed to align with the government’s policy agenda.
However, the way in which the change of leadership was announced and briefed to the media caused lasting damage because it created a perception that the government was willing to get involved in the work of the CMA, and this has given companies the impression that they can lobby politicians to help them secure a favourable outcome from the CMA, or at least that there is no downside risk from such lobbying. Once created, these impressions are very hard to get rid of.
Conclusion
To some observers, there is an obvious answer to all this. Antitrust enforcers should simply go back to doing what they did a few years ago. Just be good, independent technocrats. Take decisions based on their own interpretation of the consumer welfare standard; explain them on the basis of the consumer welfare standard rather than any broader policy agenda; and when politicians come calling, tell them where to go.
However, I do not think this is realistic, or even that it stacks up on grounds of principle.
An antitrust agency does not merely apply an established set of statutes and case law. It makes policy and it exercises discretion. Even if not articulated publicly, it has a policy stance. The question is who sets that stance. It might be the repeat users of the agency in the corporate and advisory worlds who capture it over time; it might be the agency leaders themselves who act as ‘entrepreneurs’, setting the policy stance based on their own personal preferences; or it might be elected politicians who set the policy through their mechanisms for ensuring the agency’s democratic accountability.
The UK has arguably been through each of these three in the years since the CMA was created in 2013. In its first few years some people, including Andrew Tyrie, argued that it was underenforcing and had been captured by competition lawyers and economists acting for big corporates. In the second period, when it was led by Andrea Coscelli (and when I served on its executive committee), it was accused of overenforcing in line with Coscelli’s personal views and the CMA’s institutional interests but without having a clear mandate to do so. This was followed by a third period in which ministers corrected and sought to ensure greater alignment with the government’s policy agenda.
The third of these phases has been the most publicly visible – and the most clumsily executed – but it is not clear that it is a worse form of capture than the first two.
This is why we should not look at ‘politicisation’ as being a single type of influence, and neither should we look at it separately from attempts by other groups to influence the enforcement stance of an antitrust agency. Politicians are one of several groups of people who will seek to influence an agency’s agenda, and you cannot take politicians out of the equation without handing more power to other vested interests instead.
Therefore, rather than trying to ‘depoliticise’ competition policy, we should actively encourage political involvement in the areas that are important for its democratic legitimacy, and put in place guardrails to stop political interference of the kinds which undermine its legitimacy and the rule of law.
