How Big Tech's revolving doors erode EU antitrust laws

For example, law firm Monckton Chambers caught a real big fish earlier this month when it recruited Nicholas Khan KC, a member of the commission's legal service.

Khan has represented the commission in hundreds of cases before the European Court of Justice, including some of the most high-profile cases, such as the Google antitrust cases and the Illumina/Grail merger cases.

He won’t be a stranger to his new colleagues. Monckton Chamber has been involved in exactly the same competition cases from the other side of the aisle, defending corporate clients the commission has been investigating.

And Khan’s insider knowledge of how the commission carries out antitrust investigations is set to benefit his new employer. Monckton Chamber explicitly welcomes Khan’s “unmatched expertise of how the European Commission investigates infringements of EU competition law”.

From DG Competition to Microsoft

This is, unfortunately, not a standalone case. Khan KC is one of several high-level competition officials joining the private sector in the last few months.

Over the summer, the former antitrust official Nicholas Banasevic joined Microsoft to lead its competition and regulation team.

For years, Banasevic led the commission’s attempt to crack down on Big Tech’s abuse of its monopoly power before joining the law firm Gibson, Dunn & Crutcher in 2022.

LobbyControl and Corporate Europe Observatory have submitted a complaint to the commission challenging their granting of permission for Banasevic’s move to Microsoft.

In the same month Henrik Morch, a DG Competition official with more than 30 years of experience at the Commission, joined the antitrust practice at law firm Paul, Weiss, a move which prompted the EU Ombudsman to open an investigation.

As the European Ombudsman has rightly pointed out, these moves are highly damaging to the integrity of the EU’s competition policy and have a corrosive effect on public trust.

Former competition officials possess in-depth knowledge and confidential information that they may use to the benefit of their new employers.

And even though the Commission claims it puts firewall restrictions in place to mitigate the risk of a conflict of interest, it has no way to enforce these restrictions and admits it relies on trust in the former official to comply.

Making matters worse, the commission refuses to provide any transparency on the restrictions it puts in place – in contrast to the British Competition Authority CMA, for instance, which delivers high standards of transparency.

Big Law teams up with Big Tech

These revolving-door cases at DG Competition come at a crucial time. Over the last few decades, Big Tech companies have monopolised key features of the internet.

However, both in the United States and in the EU, Big Tech’s monopoly power is coming under increasing scrutiny. 

A US judge recently ruled that Google holds an illegal monopoly on internet search engines, and the EU is attempting to rein in Big Tech’s monopoly power abuses with the Digital Markets Act (DMA).

The DMA – which went into effect last March – has been heavily contested by Big Tech.

In what the digital rights organisation EDRi has called a strategy of “delay, depress, destroy”, the Big Tech giants are fighting tooth and nail to avoid compliance with the DMA obligations.

Tech journalist Cory Doctorow labelled Big Tech’s compliance plans as, in effect, a message to the European Commission to “drop dead”.

Meanwhile, ByteDance (which owns TikTok), Apple, and Meta (which owns Facebook) have all filed legal challenges against the DMA in court.

Revolving door cases undermine the EU’s competition enforcement

Big Tech’s strategy is crystal clear: Avoid regulatory and legal scrutiny by employing an army of lawyers and lobbyists.

Together Google, Amazon, Facebook, Apple, and Microsoft are now spending €33.5m on lobbying the EU institutions – an all-time high.

The many revolving door cases – often involving former officials who have played a key role in regulating Big Tech – can only be seen as another attempt to sabotage any challenge to Big Tech’s toxic business model.

It is time to close the revolving door, before corporate power spins out of control.