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The EU-U.S. Trade and Technology Council is an opportunity to discuss platform regulation

brown wooden chairs on blue and brown wooden floor

The thawing of relations between the EU and U.S. in the wake of President Biden’s successful visit to the EU last month has given new momentum to transatlantic cooperation, including on technology and data governance. The new EU-U.S. Trade and Technology Council (TTC) presents a key opportunity to drive transatlantic technological leadership while addressing diverging approaches to tech regulation, such as the EU’s Digital Markets Act proposal which has triggered U.S. concerns.

There are many trends pulling countries apart on digital policy issues right now, threatening to fragment the development of new technologies and divide democracies at precisely the time when a common approach and shared values are needed. Fortunately, President Biden and President von der Leyen have recently agreed to launch a EU-U.S. Trade and Technology Council (“TTC”). The TTC is an exciting development that has the potential to bring the U.S. and EU together to drive the global technological landscape in a much more positive direction.   

The TTC will be led by heavy hitters on both sides. On the EU side the TTC will be co-chaired by the EU Trade Commissioner Valdis Dombrovskis and Commissioner Margrethe Vestager. On the U.S. side, the TTC is co-chaired by the Secretary of Commerce Gina Raimondo, Secretary of State Antony Blinken, and U.S. Trade Representative Katherine Tai.

The purpose of the TTC is to “coordinate approaches to key global trade, economic, and technology issues and to deepen transatlantic trade and economic relations based on shared democratic values.” The TTC sets out ten working groups covering a broad range of technology-related issues, including efforts to find common ground on data governance, platforms, supply chains, trade issues, climate, and technology standards.

This comes at a time when regulatory proposals such as the Digital Markets Act threaten to drive a wedge into improved U.S.-EU technological cooperation. U.S. and EU policymakers have a key opportunity to use the TTC to steer towards shared values like due process, regulatory dialogue, and the rule of law, and away from discriminatory outcomes that risk depriving businesses and users of basic privacy, security, and intellectual property protections. 

Separate from the new TTC, there is a long-standing dialogue between the U.S. antitrust enforcers, the Federal Trade Commission and Department of Justice, and their European counterparts in the competition department of the European Commission. This dialogue has helped competition enforcement authorities engage productively on information gathering as well as specific elements of antitrust enforcement such as evidentiary requirements and the assessment of economic data. The EU-U.S. Summit declaration suggested that this dialogue on competition enforcement would continue with a greater degree of formality under the umbrella of a Joint Technology Competition Policy Dialogue, likely focused on cooperation on active enforcement actions.

Continued dialogue between antitrust enforcers is important for the future of competition policy and its aspiration for transatlantic convergence. However, there are more fundamental directional challenges currently being discussed with the EU’s Digital Markets Act that would shift the landscape far beyond antitrust reform and enforcement. It is therefore critical that these novel regulatory approaches to platform governance are discussed among those drafting the new laws, not just those enforcing them. 

The TTC provides an ideal forum for elevating these new and complex challenges and ensuring thoughtful political and legislative consideration of the different interests and values underlying these regulations. A lack of high-level transatlantic coordination – and the absence of regulatory dialogue – will inevitably lead to lopsided rules, and potentially contradictory regulatory systems that no level of enforcement cooperation will be able to resolve. What one jurisdiction may find an acceptable infringement of the rights to intellectual property, security and privacy protections, or the freedom to contract, may go beyond what another would countenance, particularly when foreign companies are targeted. A conflict of laws will also negatively impact relations between the EU and U.S. in the long term, directly undermining the shared ambition under the TTC “to deepen transatlantic trade and economic relations.”

The TTC is an opportunity for a frank dialogue on transatlantic and global tech challenges as well as an opportunity to drive EU-U.S. leadership on the future of the digital economy in the face of increasing global threats. Political leaders across both jurisdictions will need to be clear-eyed about opportunities for shared technological leadership as well as the risks of inadvertently empowering authoritarian countries through blunt or untested regulatory approaches. Building a strong forum to collaborate on tech standards and address diverging approaches to platform regulation would be a timely and appropriate place to start.

Digital Trade

Companies rely on clear, predictable rules that facilitate digital trade to export their products and services around the world. These rules include balancing the competing interests between encouraging investment and enabling information access; promoting the free flow of information online; and maintaining balanced intermediary liability regimes.