There's something about Mario
Published: 24 Mar 2004 15:30 GMT
Despite some setbacks, legal experts said that Monti has brought a greater degree of deliberation to the European Commission's antitrust proceedings than many of his predecessors have.
He made economic analysis a top priority in examining the competitive effects of mergers, creating the position of chief economist within the competition division and hand-selecting its first appointee.
He also took on politically unpopular causes, revoking numerous aid programmes in which governments provide subsidies to local businesses and industries. In addition, he significantly stepped up anti-cartel actions, emulating US antitrust enforcers by offering leniency to accused cartel members that assist in investigations, and expanding the division's investigative powers.
Attorneys said Monti has fought hard to identify and address shortcomings within the division, spurred by the stinging reversals from the Court of First Instance. Significantly, he advocated and won sweeping merger-review reforms during his tenure, including the institution of a high-level devil's advocate panel that now takes a second look at any merger that might be blocked.
"Monti has absorbed some body blows, but he immediately set about not wringing his hands, but examining how to fix it," said one US attorney who has represented clients in proceedings before him. "He's cautious, thorough, thoughtful and deliberate."
If Monti approaches the facts and technical issues in a case with caution, he has not been shy in applying the law decisively based on his analyses -- a trait that struck home clearly in this week's decision as well as in the GE-Honeywell case. In insisting that the Microsoft decision set a strong precedent for the company's future behaviour, he has clearly taken a risky, if calculated, course.
"It is essential to have a precedent which will establish clear principles for the future conduct of a company with such a strong dominant position in the market," Monti wrote in a statement last week, signalling that settlement talks with Microsoft had failed.
If Monti has brought stricter review and more aggressive enforcement of antitrust matters, many believe the ultimate legacy of his administration may be greater judicial review of European Commission decisions. That issue is on the front burner, as Microsoft prepares its appeal of Wednesday's findings.
Although the Microsoft ruling is risky, observers said Monti has worked hard to craft a decision that will not only survive on appeal, but also that will avoid a stay that could drag the case out for years without a remedy. Recent events have made Monti acutely cognisant of the court appeals, according to one attorney who asked not to be named, and that, in the end, could be Microsoft's greatest reason to fear the Commission and his findings.
"He's taken a lot of heat from Luxembourg court... but he's brought that learning to bear," this person said. "He's been bending over backwards to ensure they have no reason to find fault with this decision."
Attorneys also said Monti has been mindful of the repercussions of the ruling on the other side of the Atlantic.
The case has been insulated from charges of regional favouritism since it will mostly affect US-based competitors of Microsoft, such as Sun Microsystems and RealNetworks. But Monti did not want to risk a repeat of the aftermath of the GE-Honeywell merger veto in 2001, issued after US regulators had approved the deal. That decision created a diplomatic furor, spurring US officials, including President George W. Bush, to raise concerns about the commission's handling of the merger.
Since then, the European Commission has worked at bolstering its relationship with Washington. People familiar with the agencies said Monti's relationship with US regulators has deteriorated during the Bush administration, which has taken a less aggressive antitrust stance than the Clinton regime. But there have been signs of strengthening ties recently. Last week, the Department of Justice reasserted that it believes its own settlement with Microsoft is adequate. But it noted in a statement that it has a "strong working relationship" with the European Commission.
"It took a lot of courage for him to go after Microsoft," said Dan Rubenfeld, an economics professor at the University of California at Berkeley who worked on the US Justice Department's antitrust case against Microsoft. "There has been a lot of talk of politics in this and other cases, but I believe he has been driven entirely by the desire to do the right thing."
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