Harvard Law School Association of Europe

HLSAE Featured Alumnus - March 2023

Interview with Michele Piergiovanni LL.M.’03:
"I like the sense of doing something that goes beyond my day-to-day work, contributing -in a small way- to the broader European project."

Interviewer: Could you briefly introduce yourself – where do you come from and what motivated you to become a lawyer?

Michele Piergiovanni: I come from Genoa, a beautiful town on the coast in the northwest of Italy. I became a lawyer mainly because my father used to be a university professor of history of law -so a different field from my current area of practice- but that's what motivated me to study law in the first place. I got my law degree from the University of Genoa, so yes it took a while before I left home and mamma to go and study abroad.

Interviewer: When and why did you decide to apply to the Harvard Law School?

Michele Piergiovanni: I first started thinking about that during my traineeship in Brussels, having graduated from the College of Europe in Bruges. I had mostly focused on European law during my studies in Genoa and my Master’s in Bruges, but the traineeship with a U.S. law firm exposed me to a different way of approaching the law. Furthermore, the firm encouraged trainees to seek U.S. experience in terms of education, so that is when the idea started brewing in my mind.

I had no expectations to be accepted to Harvard in the first place and applied to three or four law schools. In the end, I was lucky enough to be admitted to Harvard and decided to go there.

Interviewer: What was the experience at the Harvard Law School like? If you think back to that year, what are your most vivid memories from the LL.M. in Cambridge?

Michele Piergiovanni: I know everybody says that, but it truly was a fantastic experience. I enjoyed the academic side of it a lot, but beyond the studies, the law school itself, what stuck with me the most was the social element: getting to know people from different parts of the world and interacting with them and also having the opportunity to go and listen to talks by exceptional faculty members at other Harvard schools. That was really the most enriching part of the experience, and I still remember it vividly, 20 years later.

I keep in touch with some of my HLS classmates- a couple of them are also based here in Brussels, and others live elsewhere in Europe, South Africa, the Philippines, and the U.S., among other places. We actually have our 20-year reunion coming up this spring, so hopefully, it will be a good opportunity to see many of them!

Interviewer: What attracted you to competition law?

Michele Piergiovanni: Competition law was part of my first LL.M. studies in Bruges. Before that, I had an interest in European law, the way the EU institutions function, and the fundamental freedoms at a more general level, but in Bruges, I took specialized courses on competition, did my dissertation in competition, and then started to work in the competition field here in Brussels. It was the “Bruges effect” that brought me to competition.

Interviewer: You worked in private practice after graduating from law school. What motivated you to move to the public sector? For law school graduates who are still uncertain about which path to choose- what are the pros, from your perspective, of doing public interest work?

Michele Piergiovanni: I really enjoyed both stages of my professional life and would certainly recommend trying both as each of them helps you develop different skills and become attuned to different sensitivities.

The part I like the most about working in the public sector is the sense of doing something that goes beyond my day-to-day work, contributing -in a small way- to the broader European project. Furthermore, I like being involved on the policy side of things and contributing a little bit to shaping EU competition policy. It is something that you can only do in the public sector.

Interviewer: To what extent are you still a lawyer and to what extent do you contribute to policymaking? What are the skills necessary for this kind of work?

Michele Piergiovanni: I am a bit less of a lawyer than I used to be these days.

This is because I spend less time than in the past dealing with the details of individual cases and a bit more time on the policy side of things. At the same time, individual cases, in particular in the antitrust field, are also a great tool for the Commission to signal its priorities both in terms of sectors and in terms of the type of conduct that it considers most harmful.

In terms of actual policy work, we have done a lot of work over the last few years in reviewing and amending a number of Commission policy documents in the competition field and this work is still ongoing. These notices and guidelines are very important as they lay out the way the Commission interprets the provisions of the Treaty or of EU secondary legislation and in doing so they provide transparency and legal certainty to our stakeholders.

Of course, in order to develop policies, one must know the fundamentals: what the law says, what are the legal boundaries within which the Commission can operate in order to develop policies.

I think that the analytical skills that one develops by studying law and practicing the legal profession are very important in my line of work, not only when looking at the case work, but also for the policy work which often requires organizing and presenting clearly the way in which the law has evolved in a specific field over time, including by looking at the case law of the European Courts and the Commission decisional practice.

Interviewer: You managed several high-profile cases since you joined the European Commission in 2011, including most recently Microsoft/LinkedIn and Qualcomm/NXP, where the Commission cleared the proposed mergers, subject to certain undertakings by the companies involved. What is the significance of these cases in the broader context of the EU approach to conglomerate effects?

Michele Piergiovanni: I worked on these cases while I was the Head of the Unit of DG Competition within the European Commission dealing with mergers in the IT, telecoms, and media sectors. These were the first cases where we started to grapple with issues that are now more current in terms of the impact of certain transactions on digital markets. How the Commission should approach markets where there is no price because the access to the content is free, but users “pay” through their attention and data? What impact do digital mergers have on the future competition?

The EU started off as a pioneer of digital enforcement both in merger control and antitrust. Take for instance the three Google antitrust cases that we had between 2015 and 2019 relating to the violation of Article 102 TFEU¹ a few years ago. The EU regulator was the first to turn its attention to these cases, whereas today there seems to be a broader international convergence on the attention that needs to be paid by competition authorities to digital markets, given the larger societal importance that effective competition (or lack thereof) in these markets may have.

Interviewer: Some of those cases are high profile, subject to immense public scrutiny. How do you deal with the pressure in that regard, when you know the cases and the decisions that your team comes up with will be thoroughly examined and questioned by the media, politicians, etc.?

Michele Piergiovanni: You deal with it by treating with fairness and respect all your stakeholders, be it for example the merging parties or a complainant in an antitrust case. You deal with it by being transparent, so that your counterparts, whoever they may be, can understand (within the limits of what is possible) what the Commission is thinking and where a given case is going. You also deal with it by assessing a given case based on its facts and to the best of your technical competencies. And you deal with it by trying to communicate and explain why a certain decision has been taken.

Another important aspect of working in the Commission is that it is not my personal work, but the Commission’s decision, that is put out there, so perhaps there is less pressure on the individual, and more of a sense of collective ownership over what one does. The decisions of the Commission as such are not the work product of one person or one team, but condense the outcome of multiple exchanges among Commission services and the political discussion at the level of the Commissioners and are a product which is owned by the Institution in the end. So, it is a way to share, if you will, the honors and to relieve the pressure from an individual.

Interviewer: You were also involved in the CK Telecoms case, whereby very recently, the ECJ Advocate General recommended setting aside the General Court judgment and endorsing the European Commission’s initial decision to prohibit that particular merger. What was your involvement in this appeal procedure, and what are the implications of this case for merger control rules?

Michele Piergiovanni:  I would not want to comment on the merits of the case as such because it is pending before the Court, and we will of course wait for the Court of Justice to decide what it will, in the coming months.

The case is significant beyond its factual specificities, as it raises important issues for the interpretation of certain parts of the legal text of European merger control, in the first place the standard of proof that the Commission has to meet in such cases, but also other key concepts such as “closeness” of competition, “important competitive force”, or “significant impediment to effective competition”. The Court’s ruling will have precedential value and will provide guidance to all of us, be it the Commission or the business community, to know how to go about interpreting certain key concepts of European merger control rules.

Interviewer: How does the issue of Big Data relate to competition policy? How do you balance the opportunities arising from good use of data, on the one hand, and the need to preserve and promote fair competition practices, on the other hand?

Michele Piergiovanni: Big Data is an ongoing phenomenon that has become the center of a lot of debate in the antitrust world and much beyond it in the last few years. It results from the emergence of large Internet companies that operate by offering several services for free, essentially in exchange for users’ attention and data, and gather large sets of information about what their users do, what they like, what they don't like, what they buy, what they read, don't read, and so on and so forth. This information allows companies to improve their services: the more data they have, the better the product can become. On the other hand, it makes it difficult for competitors (who do not have access to the same amount of data) to challenge their position.

From a competition law perspective, big data is one of the elements that can indicate a company’s market power and present barriers to entry for new players in the market. In the context of mergers, for example, among other elements, we must assess whether one company, by acquiring another company, is likely to increase the pool of data to which it has access and make its possibly dominant position even more difficult to challenge.

Also, the recently adopted Digital Markets Act (“DMA”) has a number of provisions that are tailored to ensure the sharing of data by gatekeepers with smaller players so they can compete, or, conversely, provisions that prevent gatekeepers from combining data across different services.

Interviewer: Could you tell us more about the significance and conception of the DMA?

Michele Piergiovanni: Competition enforcement over the last few years has shown that certain conducts by large companies, which we consider to be anti-competitive, tend to repeat themselves. The idea behind the DMA is to codify some of these conducts and declare them illegal upfront, as opposed to the more traditional competition law approach whereby one must prove that a company is dominant in the relevant market and that its anti-competitive conduct is capable of having anti-competitive effects.

Going forward DMA and competition law enforcement will co-exist and complement each other, with the latter being key to capturing potentially illegal conducts that are not covered by the DMA, including those which may emerge because of future market developments.

Interviewer: In your view, what could other countries learn from the EU in terms of protecting digital markets? What are we doing right in Europe?

Michele Piergiovanni: I would not go as far as suggesting that other countries should learn from the EU. What is clear, looking at other jurisdictions, is that regulators around the world are mindful of the need to be vigilant about the functioning of digital markets.

There have been attempts (although so far unsuccessful) to pass legislation in the U.S. dealing with some of the same issues as addressed by the DMA; a vivid discussion on digital markets is ongoing in Australia; South Korea also passed a law regulating app stores.

Interviewer: Just a few days ago, Executive Vice-President Vestager announced the proposal for a State aid Temporary Crisis and Transition Framework, whereby she referred to the double challenges of the energy crisis and the Inflation Reduction Act of the US. Could you tell us more about those challenges and also other challenges that the European Commission is, or will in near future, be facing as far as your area of expertise is concerned?

Michele Piergiovanni: The idea behind the proposal announced by Executive Vice-President Vestager is to allow Member States to support an industry that is key for Europe’s green transition by simplifying some of the existing State aid procedures and by allowing Member States to support certain key investments, in particular where there is a risk that otherwise they would take place elsewhere.

In terms of other projects, we have a number of ongoing merger and antitrust cases, which are quite significant, such as, for example, our ongoing investigation into certain Google’s practices in the ad tech stack, as well as what we call “policy projects”- that is the review of existing guidelines or legislation. For example, we recently launched the review of Regulation of 1/2003², which is essentially the regulation that lays out the rules of procedure to enforce EU antitrust rules, amongst others, with a view to seeing whether it can be amended to speed up existing processes and make antitrust enforcement even more effective.

Interviewer: What is the internal process, the teamwork that goes into these big policy announcements?

Michele Piergiovanni: Essentially, it is a very interactive process with multiple exchanges between DG COMP, us here at the Cabinet, and the Commissioner. We try to provide some policy steer as regards specific cases or projects, but, to be fair, most of the work is done by DG COMP, which features hundreds of dedicated, competent, and very motivated colleagues.

Interviewer: How do you respond to criticism that the large bureaucratic apparatus of the European Commission is inherently inefficient?

Michele Piergiovanni: No doubt, every organization can get better at doing things. However, if you consider how many people work in the Commission and how many European citizens they serve, the ratio of EC officials per citizen is quite low (even compared to national governments). It may seem a large apparatus, but still a rather lean organization considering the extent of tasks it has to carry out for the benefit of all Europeans.

Setting aside the criticism, one must be mindful of several success stories in terms of what the Commission has achieved, including the COVID vaccine story, or NextGenerationEU³, just to mention a few recent examples, showing a true European response to crisis and addressing real issues that affect the whole of Europe.

Interviewer: Talking about positive examples and looking back at your work thus far, do you feel that you have had an impact on EU Competition Law?

Michele Piergiovanni: I don’t know what impact, if any, I personally have had. What we try to do every day is to do our best to pursue our mission- that is keeping markets open so that they serve consumers, and watching over big businesses, so they do not abuse their position and do not exploit their customers.

1. Article 102 of the Treaty on the Functioning of the European Union (“TFEU”) prohibits the abuse of a dominant position.
2. Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty.
3. NextGenerationEU (europa.eu)

This interview was conducted by: