EU regulators quake with tough rulings

(LUXEMBOURG) – In his nine years at the head of the second-highest EU court, Judge Bo Vesterdorf has not hesitated to overturn European regulators’ rulings when he has seen fit.
With only a few months to go before he retires in September, the 61-year-old Dane is keeping the pressure on the European Commission with tough rulings for the EU competition watchdog.
Last week, Vesterdorf’s European Court of First Instance dealt an embarrassing and potentially costly blow by ruling that the Commission should pay damages to a French firm for wrongfully blocking its merger with a rival.
While that decision could open the floodgates to a wave of similar cases against the Commission, it faces yet another major ruling from the court, which is due to rule soon in Microsoft’s case against the antitrust watchdog.
The court is to hand down a verdict before Vesterdorf’s retirement on September 17 in Microsoft’s appeal against EU regulators’ landmark 2004 ruling against the software giant.
Never shy of courting controversy with his decisions, Vesterdorf leaves few people working in the rarefied world of EU competition law indifferent, with some describing him as “extraordinarily intelligent” and others calling him “not the best jurist.”
He has presided over the court since it was created in 1989 to ease the workload of its big brother, the European Court of Justice, by dealing in particular with the growing number of antitrust cases.
Stroking his beard, Vesterdorf said during a recent interview in his Luxembourg office: “Between the first competition rulings in the 1990s and now, there’s a huge difference. They are better argued, more clear.”
Competition law professor Denis Walbroek at Brussels Free University said that Vesterdorf’s departure will be a “big loss” because the court’s rulings on antitrust cases forced the Commission to be more careful in its decisions.
“There were things at the Commission that needed to be improved” and Versterdorf’s work had helped “clarify procedures,” he said.
However, as far as the Commission is concerned, “it’s clear that he will not be missed,” a French lawyer said on condition of remaining anonymous.
To this day, the Commission’s legal experts still have a hard time accepting court rulings in 2002 that annulled three of the Commission’s vetos of mergers.
The Commission says that it has since “learnt its lesson” and put a “series of reforms in place.” It constructs its arguments more carefully and has hired a chief economist to help make sure they are solid.
Commission spokesman Jonathan Todd said there was now also a system where teams check to make sure other teams do not make mistakes in their handling of a given case.
For Walbroek, Vesterdorf’s influence has been indisputably positive because although it handed down painful rulings against the Commission, eventually “regulators have seen their power increased” as a result.
While some people accuse Vesterdorf of weighing not only legal but also “political” considerations, others like Jacques Derenne, a lawyer at law firm Lovells, said that he “simply did his job.”
Fearing the court will overturn its decisions, the Commission now tries to make its rulings waterproof by “anticipating every question, even the most stupid, in order to be safe,” the French lawyer said.
As a result, the Commission’s rulings have become increasingly “unintelligible” and “nobody understands them any more,” the lawyer said.
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