Ethical Rules in Competition Cases
Earlier in the year, I got nuts. I published in Concurrences and ECLR a short paper on conflicts of interests in EU competition law (see link at the end of this post).
It created a stir. I was even told to go back to law studies…
Since then, I have on several occasions thought to myself:
should I return to law school? did I get it wrong? I mean I have lost quite some social capital in the process.
And the paper did not generate much debate, as if the issue was after all moot.
With hindsight, however, I guess I would do it again.
My evidence? Two recent news shared on social networks by our friend and colleague Prof. A. Alemanno:
- A scandal involving a quasi-homonymous. This player works for Clifford Chance. He is also a member of the Ethical Committe of the Commission. And he has been recently suspected of dirty lobbying on behalf of the tobacco industry in the so-called Dalligate. The Commission has officially responded to allegations of unethical conduct with a
jokepowerful argument: this player works for a law firm. He is thus a lawyer, not a lobbyist. Get lost.
- A Politico paper calling the US Supreme Court to adopt its own ethical code. The Scotus has no such thing. It applies mutatis mutandis the Code of Conduct for US judges. All the general arguments set forth in the op-ed apply equally to the EU institutions.
Now, for the sake of mistake avoidance, I have to add a few more things to this post: not all layers of the competition Eurocracy have failed to legally combat the plague of conflicts of interest.
The ECJ and DG COMP have set up very good, specific ethical rules. They must be praised for this.
In contrast, some other key organs of the decision making process in competition cases remain devoid of a dedicated ethical code (e.g. the Commission’s Legal Service, clerks at the ECJ and GC).
Surely, the general Statute that regulates the career of EU civil servants applies to those organs, as a sort of fallback regulatory regime.
But along the lines of the Politico paper, this is less than ideal in terms of transparency and democratic accountability.
Moreover, and as argued in my paper, most of those rules are not easily accessible to the public.
Finally, the name and background of lawyers, officials, etc. working on competition cases remains often unknown to the outer world.
For my paper see: Petit_2013_34_ECLR_Issue_6_Print (in English)