The US and European antitrust enforcers once worked so closely that the office of Jonathan Canter in Washington was decorated with elephants woven by then-EU counterpart Margrethe Vestagager.
That friendship has barely evaporated as Donald Trump’s new team took charge. Far from adorable toys, the major transatlantic exchanges between regulators over the past few months seem to be critical criticism.
This week, Andrew Ferguson, chairman of the US Federal Trade Commission, chose a meeting set up to promote collaboration between regulators, calling for the “Brussels bureaucrats” to chide businesses, restrain businesses, and clip the wings of American business.
“In almost every category that assesses competitiveness, Europe is somehow behind in the US,” he told the International Competition Network Conference in Edinburgh on Wednesday. “There is no doubt that the heavy European control hands are at least partially responsible.”
Edinburgh’s speech was not the first time FTC Chair Andrew Ferguson had opposed Europe ©Kayla Bartkowski/Getty Images
The comment marks a turning point for the transatlantic partnership, which was steadily approaching the digital age, peaking under the Department of Justice Canter and FTC President Lina Khan and Joe Biden.
The open question is whether dramatic changes in tone will have concrete effects, impeding efforts to ascertain the enterprise strength of a vast and complex technology group across multiple jurisdictions.
European and US lawyers say that while once close cross-border cooperation has once been frightened and collaborative, the policy uncertainty that could also result in potential disruptions of relationships could be equally wary.
“If you think that US/EU tensions provide certainty, then (they) simply joke around,” said a senior US merger and acquisition lawyer.
Washington’s message is directed to consider UK competition and market powers in greater detail in Britain’s interests and raise more questions about whether cooperative trust commitments will be dented.
“We have moved from the moment of global adjustment to an era in which institutions seem to have to be more nationalists to their outlook,” said anti-trust lawyer Liza Lovdahl Gormsen.
“This isn’t necessarily a good development. (It) could lead to consequences for protectionists that are harmful to consumers and the global economy.”
Edinburgh’s speech was not the first time Ferguson had opposed Europe, but perhaps the first in a room packed with European regulators.
In a fierce exchange after the speech, Ferguson told Andreas Manto, a veteran president of Germany’s Bundescalteramut competition agency, that European regulators should not “suppose everything is bad.” Instead, he urged them to wait for evidence of harm and take a more positive view, rather than actively intervening.
Andreas Manto, president of the German Competition Bureau, said the US has “more common position” ©Ulrich Baumgarten/Getty Images
Mundt later told the Financial Times: Individuals close to Ferguson disputed the characterization of their exchange with Mundt.
EU competition chief Teresalivera told reporters in Edinburgh that he believes Ferguson is misunderstanding the EU’s major digital regulations and added, “In any case, it’s mutual respect for what I appreciate.”
A Trump administration official said Ferguson “has such a close and deep understanding of (EU digital market law) that he is very forced to speak about these troubling regulations in Europe.”
EU officials are actually trying to remain optimistic, pointing to Trump’s anti-trust authorities accepting the harsh enforcement stance on big technology unlocked during the Biden administration.
DOJ continues its lawsuit against Google. Google has determined that US courts are the monopolies of online search and advertising. The FTC took Meta to court by building an exclusive by getting Instagram and WhatsApp. A lawsuit is also underway against Apple and Amazon.
After attacking Apple and Meta in April, and then fined a total of €700 million for violating antitrust rules, Ribera told FT that US officials “have made very similar decisions on very similar cases.”
Gail Slater, the Dublin-born head of DOJ’s antitrust division, previously said, “Anti-trust enforcement is Mesalpel and regulations are often Sledgehammer.”
Gale Slater, head of DOJ’s antitrust division, was more reconciliatory than Ferguson in her own appearance in Scotland © Daniel Heuer/Bloomberg
However, she was particularly reconciled more than Ferguson in her own appearance in Scotland. In a “fireside” chat with CMA CEO Sarah Cardel, she tried to highlight the “strong network” that ICN provided. “Please visit with us,” she told the assembled regulator.
Some experts argue that US EU friction can focus on rulemaking rather than merger management or antitrust enforcement. While Brussels is trying to rely more on large tech companies to support competition by following a set of upstream rules, Washington is pushing for deregulation,” said Zach Myers of Europe’s Regulation Center, a think tank.
Still, US and European lawyers are focusing on the potential forks of antitrust laws.
“If the consensus collapses between Brussels and DC, there is a serious problem,” said an official from a former European competitor. “But I don’t think that will happen.”
Sustainability could be one flash point in Washington. Minister Genki Rivera said he hopes to ultimately have a merger that will support “provision of sustainable products and equipment.”
This is a breakaway from the Trump administration, suing US states to block climate laws “motivated by burdens and ideology.”
Questions about transatlantic cooperation are as several authorities are investigating the limitations of antitrust approaches and merger management.
For example, British Prime Minister Sir Kiel Starmer has pledged to ease the burden of regulations that prevents investment in the country.
Following the chairman’s illicit change in January, the CMA has pledged to move faster in the merger and to rethink less of global deals that the UK is not a central player.
CMA CEO Sarah Cardel flew to the US last month to meet Ferguson and Slater © Charlie Bibby/ft
Cardel flew to the US last month to meet Ferguson and Slater. According to two people familiar with the issue, the meeting went well, and Ferguson was impressed with Cardel compared to some of his European counterparts.
Still, while the US may take a softer line towards the UK, Ferguson in Edinburgh has focused specifically on the EU’s DMA and has failed to mention the laws of London’s newly introduced digital markets, the tensions could stem from the power of the new CMA.
Regulators can now designate companies with large positions in certain digital markets as having “strategic market conditions” and impose specific conduct requirements. The CMA is investigating Google and Apple with the aim of potentially passing such designations.
The severe policy impact of transatlantic divergence has yet to unfold, but rhetoric appears to have already had an impact.
One of the European officials in Edinburgh said he was surprised by Ferguson’s negative tone, especially at an event designed to promote collaboration between global agencies.
“He’s coming to Europe, criticizing Europe, then leaving,” the official said. “I’ll never do that.”
