EUROPEAN IN-HOUSE LEGAL CONFERENCE CLOSING KEYNOTE − AN INSIDER’S LOOK INTO THE DECISION MAKING ON THE EUROPEAN LEVEL AND FUTURE CHALLENGES THAT EUROPE IS FACING
Viviane Reding, Former Vice President and three-term European Commissioner, Former Member of the European Parliament
Ladies and Gentlemen,
Let me speak in the beginning and in the end and in the middle of the positive elements of the European development. I have been yesterday evening in Aachen. You know that every year in Aachen the Karlspreis, the Prix Charlemagne, the Prize Carolus Magnus is given to a very big personality. This is going to happen next Thursday for the Secretary-General of the United Nations and he will have a kindly introduction. And one week before, the Medal of Carolus Magnus is given to an association which is very active for the good of the European development.
And I went there yesterday evening to make the laudatio for the Erasmus Program. And if you ask the people out there, which by the way since the Brexit Referendum are majorly/strongly believing in Europe. We had downwards grades and since the referendum the numbers are up again because the people start to understand what the value of being united and working together means. if you ask them: what is important in Europe for you? What is in it for you as a person? The first answer is Free Movement, only the second answer is Peace, the third answer is the Euro, the fourth answer is Erasmus, because Europe is about people, it is about freedom, it is about meeting each other, it is about experiencing the cultural diversity of Europe.
So many students are going from one university in one country to another university in another country: 9 000 000 so far since 1987 when we created Erasmus. And the nicest thing is that we have roughly 1000 000 Erasmus babies, out of all these endeavors. Which is normal because with the Erasmus Program actually started the international marriages. A French man marrying a Spanish woman, both of them living in Finland and having a baby for example. We have an entire Erasmus generation of Erasmus babies coming up. And this is not only a positive element. It also creates problems because love is wonderful but what if there is a divorce? Which law applies? Imagine three countries being involved: which law applies? So we needed on the basis of the Erasmus babies to have legislation of bridge building between the legal systems of the different Member States because a divorce law is not a European law, it is a national law. And we have to get an order into this, that for international couples there is no rush to the court which is more advantageous to one member of the couple. But an orderly way of solving problems. The same by the way is also true for succession where we also gave an orderly response for international couples or for elder couples from the Northern countries spending their old life in the Sun at the Southern shores of Europe. Which law applies on the successions? We needed to build up also for the Free Movement of the Documents international rules on Erasmus Babies, as I always said.
I think we have to go a step back. I have been speaking about Peace. Peace was the Vision that our Founding Fathers (there were no women in politics at that time after the Second World War) wanted to build and in order to get this done, they didn’t choose a top down method doing everything but as Schuman stated very clearly 69 years ago, they tried a step by step method. The beginning was just bringing together the two elements which were indispensable for making war: coal and steel. So by not leaving that freely any more, Germany and France had no longer the basic elements freely in their hands to start a war. Very realistically from there on, the Common Market was developed: a strong economic thinking before the common currency. And in this economic thinking, the human beings were
So we started by organizing the human beings as workers and giving them rights as workers, also cross-border. We didn’t have citizens yet at that moment. Then we created the currency but we needed the Treaty of Lisbon in 2009 together with the Charter of Fundamental Rights which is our constitution in Europe and which has treaty value: when you see a decision of the Court of Justice quoting articles in the Charter of Fundamental Rights, you know that the Court has taken very seriously this decision. And at that moment only, the workers became citizens. We did not make in our applying of the European rules a difference like the Americans for instance do, applying the rules only to people with an American passport.
Our rules from the Treaty of Lisbon are applied on all people visiting and living on the territory of the European Union. And the European Citizenship is always linked to a national Citizenship of one of the European Countries. This dual nationality, a proper one and a shared one, provides all the rules which are inscribed in our Fundamental Law. And this Rule of Law is since 2009 the backbone of Europe as it should be the backbone of any modern democracy. And here when I speak about the backbone, I don’t speak only about an independent justice, a non-discrimination of citizens or a free press − three elements which are really the basis of any democratic development − but also about ethics and values. And they are very clearly enshrined in the Treaty of Lisbon which states in its Article 2: the Union is founded on Values. That is a real jump from an Economic Union to a Union of Values. And then of course our Bill of Rights Charter defines these values in a very clear way. The result of this of course is that Europe has to act in domains where it didn’t act before: I quoted some of these domains linked to the Erasmus Babies, building bridges between what is considered to be a purely national responsibility.
It is not just about thinking about these values, but also about living these: the values have to be filled with rights, addressing elements which existed already but were not taken very seriously before. And you do this when you still are strong. We are still the strongest economy in the World, the wealthiest part of an organized internal market with 500 million wealthy citizens. But this will not stay like that because we have the demographics against us. Other parts of the World are coming up, Africa in terms of demography, and tomorrow India will surpass Europe in terms of demographics and wealth and the strongest nation with an organized market will very soon become the Asian Continent. That is one the reasons that the American President, who sees that he is going down, started a trade war against China.
One of the reasons why you see that Europeans don’t participate in this trade war is because they have understood that it is better to solve problems by agreements and by soft power rather than by showing your muscles.
This is what we did with regulation on data protection, filling with rights the fundamental value of digital autonomy as enshrined in our Treaty. I quote Timothy John Berners-Lee, the father of the world wide web and one of those who gave me always very good advice:
‘The first mover occupies the international agenda and has a strong chance to win the regulatory game, filling the void of rules.’
Now we are one year after the implementation of the GDPR, which was very difficult for small industries because the governments didn’t have prepared this in the way they should have prepared this. There was a panic coming up when after a preparation time still no preparation had been done and then the implementation time had finally arrived. But one year later, what do we see? We see that a fundamental value of the Europeans which has been put in regulation: in European terms this means you don’t have national regulation anymore.
Regulation in data protection, has a lot to do with the digital market. Imagine you are a startup here in Belgium, you have a brilliant idea and you want to utilize the entire European market. For data protection before GDPR, you needed to take 28 different authorizations on the basis of laws which were partly contradictory between themselves. That is fine for big companies having 100 lawyers sitting in their company, but for a startup it is just a no go. This means that from the beginning the startups were excluded from our market. Our market was closed. The way to open the market is to get rid of 28 national rules and replace them by one rule for one continent and see that this rule is applied.
What is very well applied in Europe? Very simply: competition law. So I had a look at competition law and I took over the same principles in GDPR. If you continue to misbehave in a systematic way and don’t apply the rules the fine can go up to 4% of worldwide turnover. The law was not understood. This was understood very well, I can tell you. Now one year later, actually three years later, the situation is the following. I am quoting from a SISCO study of this year which has analyzed 3200 professionals in 18 countries: ‘97% of them say that they benefit from the privacy investments, they have competitive advantage, operational offices and the investors are feeling comfortable with the way they were proceeding.’ So there is competitive advantage here, but what about outside? There is something else which we put in the law. This law applies to any company operating on the European soil, even without being in Europe. Here comes in the extraterritoriality of this legislation which applies to Russian companies, to American companies who do not have a sister company on the European soil.
This extraterritorial influence has led to something becoming very quickly a rule. If you want to have the free flow of data as a foreign state, you need to have an ‘Adequacy Decision’ which means that Europe considers that your national rules or your implementation of international rules is somehow similar to what is happening in Europe. If Europe is united and if Europe goes indeed ahead with a clear legal base and a clear legislation, it creates gold standards. When I was a European Commissioner, I had on my office desk a line: ‘Be a standard maker and not a standard taker.’ And this you have to apply. And if you apply this, you can win. I have to say that the World has to see where to go. But between the Chinese data protectionism and state surveillance at one side and the American data liberalism and laissez-faire at the other side there is our third way: an open internet in open and democratic societies with global protective standards. How important that will be with the development of Artificial Intelligence, you can imagine and think it further. It is the basis of our digital market and it starts to eliminate the deficiencies of our digital market which are the different barriers due to different country regulations.
So having heard that and having also understood the power of this market of 500 million wealthy citizens, then you ask yourself: why on earth do the Brits want to get out? I haven’t understood it so far by myself, but I have seen it come. You could feel it come before the Brexit. I saw it when I was negotiating with the British ministers. Some of them where thinking they were in the Commonwealth in the European Union, top-down: ‘Britannia rules the waves’, you see. They couldn’t understand that a Luxembourgish Commissioner − of tiny Luxembourg − had such a power. They didn’t understand what it means to negotiate, to negotiate out of a position of force and to get most of it in a compromise.
Most of them were not able to go for a compromise. While the British government needed 9 months after the Brexit referendum to decide only on writing and handing over the divorce letter without consulting and building in the meantime a compromise with all involved parties (also members of the opposition), Michel Barnier had in the meantime consulted strongly and very actively all the Governments of the 27 EU Member States, all the National Parliaments and the European Parliament collectively and had built in the meantime a very strong basis for a joint EU negotiation position that to the surprise of many didn’t break up and endured the following and now certainly concluded negotiation process, after which Theresa May found out that it was maybe not a bad idea to consult also members of the opposition to determine the British position. With the decision of implementing Brexit, they didn’t have thought yet about the issue with the border between Ireland and Northern Ireland. We intend from the start to avoid a new Civil War there, to avoid the horrifying perspective of so many families broken by Troubles that can start there at any time again. The European Union wants to rescue these families from being broken in the near future.