Mr Untouchable

Once described by former EU competition commissioner Karel van Miert as “Europe's Elliott Ness”, Julian Joshua is probably best known as one of Europe's most formidable anti-cartel enforcers. But after 27 years as the bane of EU cartels, he has finally made the break from the Competition Commission. In October, Joshua, formerly the deputy head of the cartel unit of the European Commission's Competition Directorate, packed his bags and moved into the very different world of private practice, setting up shop in the Brussels office of Morgan Lewis & Bockius.

It is immediately obvious that he is a man used to dealing with the press. Throughout our time in the boardroom of Morgan Lewis' London base, I have the inescapable feeling of a young journalist being taken by the hand and led through the process. Not that I am complaining. Joshua may be careful about what he does or doesn't say, but he is also determinedly candid and very personable, which is something that will be of great benefit in his new private practice role.

In the world of international antitrust, Joshua is not alone in swapping an official role for private practice. The highly respected D Martin Low joined McMillan Binch after many years in the Canadian Department of Justice, and US antitrust attorney Gary Spratling has recently become a partner in the San Francisco office of Gibson Dunn & Crutcher. Like Joshua, his former title was a bit more difficult to fit on a business card: “Deputy Assistant Attorney General in the US Department of Justice's Antitrust Division”.

So, is Joshua simply another example of gamekeeper turned poacher? Joshua thinks not. “It's basically two sides of the same coin,” he says. “The dream is that one day you'll be out of a job – cartels should be eliminated and you do this by putting experience to its best use.”

With the increase in mergers and acquisitions, multinationals and IT developments, huge changes have been brought about in the way that anti-cartel enforcers use their powers on what is now a global stage. Joshua says: “Business has gone global, cartels have gone global, and now antitrust enforcement has been forced to go global.”

The penalties for contravening international competition law are becoming increasingly severe and include not only stronger financial sanctions, but also jail sentences for the top executives, particularly in the US.

Joshua and his colleagues have been largely responsible for the material change in attitudes, not only among businesses, but within governments and society as a whole. Joshua has played his part in creating a compliance culture which, through his new role in private practice, he is well placed to take full advantage of.

“The exposure is enormous, personal liability a given. A responsible firm will want to make sure their house is in order, so a serious compliance culture is part of a sensible risk management strategy. Companies see someone who has worked to shape and enforce the laws as uniquely qualified to help them,” he says.

Instead of dawn raids on suspect companies in search of what those in the industry call “smoking gun evidence”, Joshua has turned his attention to preventing others from falling into the same trap, a trap which is becoming more and more difficult to avoid. While giving few details of how evidence was gathered, he does display a gleeful smile of gratitude to the photocopier, a machine whose heyday in the 1980s saw incriminating documents copied and recopied enough times to ensure that smoking gun evidence was almost always available. No doubt he was quite pleased by the advent of email, which must have had a similar effect. It heralded the end of a period where defence was based on the principle of “nobody talks, everybody walks”.

It is now a truly different situation to that which existed when Joshua became one of the UK's first officials in the European Economic Community (EEC), as the European Union (EU) was termed in 1973. Since then, DG4, which was his department, has expanded massively and is now one of the most high-profile divisions of the Competition Commission.

Joshua is known as one of the instigators of the dawn raid methodology, but he frustratingly refuses to discuss specific examples. What he is willing to say, however, is that his was the best job in the whole of the commission. He has worked on many of the leading cartel cases, including the Preinsulated Pipes, PVC I and II, Cartonboard, LdPE (low-density industry plastic) and Polypropylene decisions. Joshua obviously values the hands-on approach – he jokes that his job in the EU was a mixture of Sherlock Holmes finding the evidence and George Carman QC cross-examining.

It's easy to tell, then, that he loved his job, so why move on? “Twenty-seven years is half a lifetime, so it was time for a radical change,” he says. Perhaps the financial lure of private practice finally made itself felt, although Joshua insists that it was more that it was the right firm and the right time to move.

It is normal for new recruits to talk up their new firm, but Joshua strikes you as a bit too long in the tooth to involve himself in such blatant marketing spiel. Added to this is his obvious respect for fellow Morgan Lewis partner John Shenefield, who served under US president Jimmy Carter from 1977-1981 as assistant attorney general of the Antitrust Division, and later as assistant attorney general of the US. He credits much of the firm's outward-looking global antitrust strategy to Shenefield's experience.

It is perhaps a good time for Joshua to make his move away from the EU as he leaves behind him a much strengthened antitrust agency. Not to say that Joshua has lost interest – he shares the concerns of many others over moves to amend Regulation 17, the cornerstone of the competition rules, established in 1957.

Among other things, the proposals aim to do away with the traditional notification system while retaining the possibility of exemption by any national court. Joshua believes this will lead to increased uncertainty. He would like to see a move towards legislation similar to the US Rule of Reason, which weighs up pro and anti-competition rights to arrive at a balanced decision.

He is also concerned by proposals for a s

ingle community law, which would exclude national law, and which are already being hotly debated among member states, particularly those which have recently passed strict laws on antitrust. He recognises that the EU is attempting to create a level playing field, but he highlights some important concerns that still have to be dealt with.

For Joshua, the most important of these is delay. “The proposals don't tackle the single greatest problem, the inordinately long time it takes to conclude complex cartel cases,” he says. “It's unacceptable by any standard for cases to drag on for 10 years or more in the commission and the courts, but such delays are inherent in the present administrative and judicial structures.” It is a system that can lead to cases staying in legal limbo for as long as 15 years, bouncing between the commission, the Court of First Appeal and the Court of Justice. Joshua believes something needs to be done, but for him, the proposals are not the answer. “The objectives are laudable but I'm not sure the diagnosis is correct,” he says.

Having left the best job in the commission, despite his frustration with delay, the difficulty is not in coming to terms with his new job, but in getting used to a completely different way of working at the age of 54. “The change is an exciting one,” says Joshua. “It will take time to get used to another structure – it's very different to my position in the commission – but it's fantastic to come out into a can-do type of atmosphere.” n