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Rare is the day that a scandal does not engulf the CMA. And today is no exception. The decision to block the British competition agency made headlines just a day ago, when the class action lawsuit against Sony for taking advantage of its dominant position on PlayStation. Through its monopoly on the PlayStation Store, Sony allegedly applied disruptive measures to both games and in-game content, in addition to high developer fees. The lawsuit estimates an economic claim amounting to 5,000 million pounds, in losses and damages caused to developers and users.
But that has not been all, because today the European Commission has separated even more from the decision of the CMA, advocating for a defense of competition. Because that’s his “Call of Duty”according to the exact words of Margrethe Vestager.
The director of the CMA was a lawyer for Sony, being able to break the duty of impartiality of the organization:
As once again highlighted by analyst Florian Mueller, Colin Raftery is the current Senior Director of merger review at the CMA. But, from 2006 to 2013, he worked at the Colin Gottlieb law firm; the firm that has been representing Sony as an opposing or prosecuting party in the Activision Blizzard purchase process. And it would not be the only case, because Mueller points to another member of the CMA who has collaborated with the RBB firm, whose clients include not only Sony, but also Google, the second major opponent of the operation.
«A conflict of interest may arise when one of the members has a financial interest, or of another type, that derives from his external activities and that influences, or that could foreseeably influence, his impartiality or independence in the fulfillment of his duties» , we can read on the CMA website.
In case of demonstrating existence of conflict of interestall the CMA decision could fall due to arbitrariness and lack of transparency. Let us remember that the CMA itself sets out the steps to follow in the event that any of its members incurs in these conflicts of interest, which may be economic, personal, commercial or of other types. Conflicts that may lead, if proven, to the disqualification of the member in a procedure. In this case, given that the CMA’s decision has already been made, it could decline for having violated its own code of ethics and not complying with the requirement of independence of its members.
The duties of independence and impartiality are not exclusive to the CMA, but to all competition regulatory bodies. These are fundamental duties that govern democratic systems and, therefore, the CMA is not the only one that must comply with them. For example, the European Commission is also obliged to safeguard these functions, as is clear from the Treaty on the Functioning of the European Union. And the FTC cannot receive external impulses either, hence the constant accusations of arbitrariness towards its representative, Lina Khan.