She does not understand. Or rather, she understands all too well why her contract was not renewed as president of France's antitrust body the Autorité de la Concurrence on October 13th. It was on October 1st that Isabelle de Silva learnt from finance minister Bruno Le Maire that President Emmanuel Macron was not going to let her stay on at the end of her five-year term, even though it had been widely assumed she would continue in the role. As she said later in an interview with the Financial Times, no explanation was given. In Macron's Republic, the fact that the executive has decided is apparently reason enough.
The non-renewal of her position was made public on October 4th in a terse internal statement from the Autorité de la Concurrence in which Isabelle de Silva announced her immediate departure. The news took everyone by surprise. Her continuation in the post, which was supported by the minister of finance himself, had seemed certain. That was until Emmanuel Macron, who as president has the final say on the appointment of the president of this independent authority, decided otherwise. Since the breaking of the news, staff at the authority, senior public servants and the world of business have been speculating over the reasons for this abrupt U-turn by the Élysée carried out at the very last moment.
Enlargement : Illustration 1
The reason this surprise decision has attracted so much attention is because the Autorité de la Concurrence occupies a special place in public economic life in France. It is the oldest and most powerful of the regulatory authorities, and also the most independent. It does not hold back from blocking or at least setting limits to the games of financial Monopoly that the world of business loves to indulge in, and from punishing giant international corporations that do not respect the rules. In June, for example, the antitrust authority handed out a 220-million-euro fine to Google for using its algorithms to abuse its dominant position in the online advertising market. In short, the institution's popularity in the world of business is close to zero.
Given that she has an unchallengeable record, perhaps it is this independence for which Isabelle de Silva is today paying the price? Even if her own words are more measured, the former president of the antitrust authority revealed some of this concern in her interview with the Financial Times. She hinted that things had not gone smoothly and that something else important was going on behind the scenes in the decision not to renew her position – a decision that the government itself is trying to downplay.
These public comments by Isabelle de Silva were also seen as an act of rebellion in the top ranks of the civil service; it is not the done thing to publicly challenge the Élysée. Moreover, everyone who agreed to speak to Mediapart for this investigation did so on the strict condition that they remained anonymous.
A drift towards economic authoritarianism
However, many of these sources did raise question marks over what they variously described as the “authoritarian” or “illiberal” turn that Emmanuel Macron's economic policy has taken. After the government's taking back of control over several independent authorities (see this article, in French, by Laurent Mauduit), some observers wonder if it is not now the Autorité de la Concurrence's turn to be brought into line, to ensure that no obstacles stand in the way of the Élysée's ambition to reshape French capitalism in line with its views, allegiances, and goodwill.
“If that is what Emmanuel Macron wants, it would constitute a real paradox,” said Antoine Vauchez, research director in political sociology and law at the national research centre the CNRS, a member of the Centre Européen de Sociologie et de Science Politique (CESSP) and author of the book Sphère publique, intérêts privés ('Public realm, private interests'). “The competition model is key to Macronism. Emmanuel Macron based his politics on this.”
“Competition was one of the themes most discussed and recommended by the Attali Commission [editor's note, a commission aimed at unlocking economic growth headed by economist and civil servant Jacques Attali and which reported in 2008] something that [Macron] started when he was [the commission's] secretary,” Antoine Vauchez explained. “It was there that he got to know Bruno Lasserre [editor's note, currently the vice-president of the Conseil d'État, which acts as the government's legal advisor and is also the top administrative court] who headed the Autorité de la Concurrence from 2009. Later [Macron's] entire economic programme when he was minister of the economy and even his book 'Révolution' placed competition as the cornerstone of his policy. The loi Macron [editor's note, a 2015 law designed to boost growth and economic opportunities] was completely inspired by the Autorité de la Concurrence.”
Some sources even claim that the antitrust body provided entire chapters of the book, such as the one on the reform of taxis or on what became known as 'Macron's buses'. Emmanuel Macron also later justified his departure from President François Hollande's government in 2016 on the grounds that the Élysée was refusing to support a new law aimed at opening some of the most protected sectors in the economy – public notaries and pharmacies for example – to further competition.
Since arriving at the Élysée, however, Emmanuel Macron no longer speaks about competition. Some of his supporters say that his position as head of state does not allow him to openly adopt positions which collide with vested interests and even a large section of public opinion. They suggest that this could even be the one of the reasons why Isabelle de Silva was removed: that she was seen as too technical and had not sufficiently made the case for competition among the general public. According to this theory, Emmanuel Macron is looking for a “fresher, more powerful voice” to champion the cause of competition and back up government action.
This theory does not convince observers with a close knowledge of the competition and antitrust world. They note that when Emmanuel Macron raises such issues now, it is in fact to echo the complaints of the business world and to rail against the constraints and obstacles that competition imposes. The fury seen at the Élysée when in 2019 the European Commission refused to accept the merger of French and German rail companies Alstom and Siemens is eloquent testimony to this, these observers point out. Emmanuel Macron had long supported this merger, which he thought would create a European or even a global champion in the railway sector. The Commission had not understood his vision, he let it be known. Subsequently Bruno Le Maire hastily called for a change in competition rules in order to allow European champions to emerge. The matter stopped there.
The TF1-M6 case
However, the talk of national champions is still very much a hot issue in the corridors of power. The French head of state has a genuine passion for these industrial giants who, unlike those that existed in the 1960s and 1970s, should apparently no longer be the result of direct state intervention or 'dirigism', but should instead represent a perfect alliance between certain private interests and the state. Macron's unveiling of his 'France 2030' investment plan on October 12th was a further opportunity to celebrate these national champions, this “fruitful” association of public and private partnerships which supposedly benefit everyone.
The implementation of these new alliances has already started. The planned destruction of French company Suez to satisfy the appetite of French water and waste management rival Veolia, with the full support of the Élysée, is one of the more recent illustrations of this. But it is another case that today seems to be grabbing the French government's attention: the merger between television groups TF1 and M6. Some even think it is this issue that lies behind the removal of Isabelle de Silva from the antitrust authority.
On May 17th 2021 the Bouygues Group, owners of TF1, and M6's owners RTL Group – itself part of German media conglomerate Bertelsmann – announced their intention to merge the two television networks. The idea of merging the two biggest private television networks in France is, on the face of it, impossible. Together they would have a massively dominant position, with more than 42% of the audience - far ahead of public broadcaster France Télévisions with 28% - and more than 70% of the television advertising market.
But the Élysée, which is worried by the rising power of the Bolloré Group which has its own media interests, sees things differently. It has adopted all the arguments advanced by the owners of TF1 and M6. They contend that at a time when American giants such as Netflix, YouTube and Disney are threatening to shake up the media landscape, it is time to organise resistance and create a rival French giant. With a combined turnover of 3.4 billion euros the new merged company would be better placed to take on rivals, say supporters, by increasing advertising yields, developing the Salto streaming platform already set up by TF1 and M6, and strengthening its own output.
Enlargement : Illustration 2
As for concern over competition issues, government supporters of the merger insist there is no problem. They argue that these days you have to take into account all of the online advertising that is dominated by the digital giants - Google, Facebook, Amazon and so on. This line of argument would in effect mean that there are no longer any barriers to greater consolidation in the audiovisual world; adding together every French television and radio group would still only represent a small percentage of Google's online advertising revenue.
In a decision in 2018 the Autorité de la Concurrence refused to change its case law in this way. So, too, did American antitrust institutions despite the presence of Google and Facebook. And though when she spoke to the French Senate on April 7th 2021 Isabelle de Silva underlined the need to look again at the existing rules, she ruled out carrying out such a major change. She pointed out that no European regulator had modified the relevant markets by putting internet companies and audiovisual companies on the same footing.
Was this simple reminder by Isabelle de Silva seen as an act of resistance by the Élysée, which wants this merger to go through at all costs? Some people think so. Insisting that the television merger case had been carefully considered by the relevant units at the Autorité de la Concurrence, she issued a form of warning shot when she told the Financial Times: “There is no possibility that changing the president [of the competition authority] will change the outcome.”
“Yes and no,” said someone familiar with the working of the authority. “For sure, the analysis by the units is important. But in an institution such as the Autorité de la Concurrence the roles of the president and the secretary general - which unlike other members are permanent positions - are decisive. The president has often decided to change the case law in a case all on their own. That said, it will be more difficult in the TF1-M6 case. Because everyone is looking at it, including Brussels. Bertelsmann has not hidden the fact that it was making the TF1-M6 merger a test case for its reorganisation in Germany.”
End of the Conseil d'État's dominance?
We do not know if their voice will be “fresh and powerful”, and if they will be someone who is closer to the concerns of the business world; but we do know that, even before they have been appointed, Isabelle de Silva's successor is seeing their legitimacy and independence come under challenge.
Emmanuel Macron's decision to remove Isabelle de Silva at the last minute was so unexpected that the Élysée had not earmarked any candidate to replace her. Two names have since been linked with the position, though is not clear if they are red herrings or genuine contenders. One is Virginie Beaumeunier, managing director of the competition department the Direction de la Concurrence (DGCCRF) at the Ministry for the Economy and Finance, and Muriel Lacoue-Labarthe, deputy managing director at the French Treasury.
“The former spent some years at the Autorité de la Concurrence, so she knows the institution and its procedures. The latter has never dealt with a competition case,” said one source familiar with the workings of the top echelons of the civil service. “In any case, if either were appointed it would clearly show that control over competition cases was being taken back by the ministry or rather by the Élysée in this case, as everyone reports to it from now on. It would amount to going back on the reform of the Autorité de la Concurrence that Bruno Lasserre wanted and organised in 2009. What's more, neither of them has been on the Conseil d'État.”
Having someone as head of the authority who has no background at the Conseil d'État would count as another blow for what's known as the 'grands corps' or top state institutions in France, coming hard on the heels of the replacement of the elite school for top civil servants, the École Nationale d'Administration (ENA), with another body. “The Conseil d'État, the [top appeal court] Cour de Cassation and the [national audit body] Cour des Comptes have become the administrative backbone of France. The Conseil d'État has become the architect of the regulatory authorities and of public economic policies. For 35 years the president of the Autorité de la Concurrence has always come from the Conseil d'État,” explained Antoine Vauchez.
“If the Élysée does decide to break with this custom then the message from Macronism will of course be obvious,” said one observer through gritted teeth. “We'll be told that Macron is continuing with his managerial revolution and breaking with the grands corps. That would go down well with public opinion. And it would allow him to hide the slide towards authoritarianism.”
Meanwhile the Autorité de la Concurrence awaits a new president. To avoid a power vacuum, the government has put the institution's vice-president, Emmanuel Combe, in temporary charge of it. Some see this as a sign that the Élysée has decided to take its time to choose the ideal candidate. Others think that the search for a successor will take just “a few weeks”.
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- The original French version of this article can be found here.
English version by Michael Streeter