21 June 2019 | By Michael Thaidigsmann and Marten Männis
Reding: “In the European Parliament, there are noise-makers and there are law-makers”
Viviane Reding from Luxembourg served as member of the European Commission from 1999 to 2014, where she spearheaded the General Data Protection Regulation. Reding also served as a member of the European Parliament from 1989 to 1999 and again from 2014 to 2018. IN-HOUSE LEGAL sat down with her for an interview.
IN-HOUSE LEGAL: Ms. Reding, as a three-term European commissioner and a former member of the European Parliament, you probably know what it takes to become a successful politician in the EU. Is the Commission still the most important institution?
VIVIANE REDING: As a commissioner, you are allowed to have dreams and you can attempt to put those dreams into a legal text. But once the Commission has made a proposal, the Council of Ministers, representing the Member States, and the European Parliament need to agree to that. In the end, it’s all about finding a compromise without watering down the initial proposal too much. As a commissioner, you maneuver your proposal through the decision-making process.
IN-HOUSE LEGAL: Given today’s political realities, is the Commission still allowed to dream?
REDING: When I became the first EU commissioner for Justice, following the Treaty of Lisbon, I had no administration. I had to build one. I was lucky to have the best legal advisors available in Europe. They all felt this goldrush momentum: “Let’s do something, build something.” As a Guardian of the Treaty, I had to see that this Treaty was put into practice. Let me give you an example: I was confronted with the data protection directive of 1995 and balkanised systems that were not suited for the digital world. The Treaty-rights were difficult to be applicable to the individuals, despite the fact that these are guaranteed by the Treaty of Lisbon and the EU Charter of Fundamental Rights.
So, in order to close the gap in application of the Treaty, I came up with the GDPR. That meant eliminating 28 conflicting national rules and replacing them with a vision of what data protection and market opening should look like: “one continent, one rule”, for all individuals, applying to all companies.
I had the vision, and I put it into practice, but of course I needed governments to help me and a vote in the European Parliament. I got both – after a long struggle.
IN-HOUSE LEGAL: What argument convinced the national governments to back the GDPR?
REDING: There were two convincing arguments. One was the Single Market. Imagine young people create a digital startup here in Brussels and want to utilise the whole of the EU’s Single Market. They couldn’t do that, because in each territory there was a different law in place to which they had to adapt through expensive procedures. In effect, their right to utilise the market was hampered. We had to eliminate borders, and in the end that thinking prevailed.
IN-HOUSE LEGAL: So why did it take so long to get the GDPR approved by the European Parliament?
REDING: At first, the Parliament had listened very much to the concerns of national ministers, but then came the “Edward Snowden scandal”, which shifted the European Parliament from a “no” to a massive “yes”. MEPs suddenly understood why we were protecting individuals. Sometimes, you need special events to happen in order to give you give a helping hand in law-making. In this case we managed to put a vision into practice.
And I had a second vision: We were advocating for a combination of protection of the individual and the free flow of data world-wide, but we needed allies, also against a different US- thinking on data protection. Consequently, the whole legislation was built in such a way that it would become an incentive for other territories to adopt GDPR-style rules, to create a “golden World standard”.
Nowadays, if a state wants to conclude a trade agreement with the EU, it is a prerequisite to have GDPR rules in place.
IN-HOUSE LEGAL: On data protection, are there any aspects that you would have liked to be emphasised more at the European level?
REDING: There are some I would have liked to be emphasised less: All this nitty-gritty of making football clubs, schools or butcher shops crazy about GDPR was not in my original text. That’s really due to bad implementation.
IN-HOUSE LEGAL: How did that happen?
REDING: I made the mistake to put in a two-year time spare for governments to adapt GDPR rules. They did not utilise this time. We lost a lot of time during which serious implementation could have been done.
Governments should have explained the new rules, and those are basically very simple. You just ask your customers if they want to continue receiving your communications, and you store their personal data in a secure place. Some of this was already in the 1995 Directive, but it had never been applied.
IN-HOUSE LEGAL: The EU recently imposed stringent fines on US tech companies. What is more important for the transatlantic relationship, EU competition law or the politics of Donald Trump?
REDING: I always have been inspired by our competition law. It has an extraterritorial effect. When I prepared the GDPR, I included in the text that if you misbehave in a systematic and repeated manner, the fine can be up to four percent of your company’s annual world-wide turnover, at the level of competition-law-fines.
We will soon have the first Court decisions on the basis of questions submitted by the data protection authorities. Supposing the courts are stringent, then the American companies will understand the message. Maybe we need one or two striking cases in order foreign companies to really understand what the new legislation is about.
IN-HOUSE LEGAL: What has been the political impact of the GDPR outside Europe?
REDING: California recently copied GDPR, and the pressure in other US states is mounting. The US Senate is working on a US-wide law on data protection. America has become conscious about the fact that it should move.
IN-HOUSE LEGAL: Do you think laws like the GDPR, which emphasise individuals’ rights, strengthen identification of citizens in Europe with the EU?
REDING: As a European citizen, you have rights and the protection of your personal data is one of your basic constitutional rights. Citizens should be sure that the politicians they elect apply these rights, be in the field of consumer protection food safety or elsewhere. EU citizens can also call on courts to enforce these rights.
IN-HOUSE LEGAL: There has been a lot of lobbying around controversial legislative proposals lately. Do companies believe there is a danger of European over-regulation?
REDING: I have seen a lot of lobbying for American interests on both the GDPR and the Copyright Directive. There was an effort to stop Europe to pass these laws. However, because the lobbying from the American side was over the top, our European media companies and artist associations also started to strongly explain their point of view.
IN-HOUSE LEGAL: It needed American lobbying to wake the Europeans?
REDING: Yes. In the digital area, the Europeans don’t have the same mentality as the Americans.
The American lobbying “tsunami” had the effect that the Europeans started asking: Do we want to decide on our own what is in our laws, or do we want to let the Americans decide? We are now seeing that the European lobby efforts building up and the European point of view prevailing.
IN-HOUSE LEGAL: Where do you see the digital strategy going with the next Commission and the next European Parliament? Will it be reinforced?
REDING: We are only at the beginning, and the GDPR is just the basis of the Digital Single Market. We have in Europe very strong research and our universities are world-class. And yet, we have a problem when it comes to commercialisation. We have insufficient financial investments and risk capital. Hence, we risk to lose our inventions and our talent. If we want to survive as a continent we have to be in the forefront of the digital space: this will be the political work during the next years.
IN-HOUSE LEGAL: Most of the leading tech companies are American or Chinese. Do you think a European company can emerge that could rival them?
REDING: To a certain extent the territories in Europe still function in different ways, whereas if you got to the United States, you find a united market. It is smaller than ours, but it is open. We need to open our space to a truly digital single market.
GDPR was the model of how we should proceed from here on: One continent, one law, an elimination of barriers, and freedom to act. If we are not quick, we will have even more problems when Artificial Intelligence (AI) will take over.
The politicians will have to work on the ethics of AI, but in such a way that innovation remains possible, i.e. not an ethical framework that is straightjacket. Our companies need to be able to fly. The universities, the research centres do an extraordinary work. So, let’s get rid of the national barriers and proceed with progress.
IN-HOUSE LEGAL: What will change in the wake of the European elections?
REDING: In the European Parliament, you have two kinds of parliamentarians: those who make laws and those who make noise.
The noise-making part is going to be stronger. Those politicians are not interested in law-making, only in headlines. I suppose the law-making centre of the Parliament will unite, as has been the case before.
It remains to be seen if there are more governments led by populists and anti-European extremists. That could make things more complicated and prolong the decision-making process.
However, although I don’t see anything positive in this development, the populists will not be able to block the centre parties going ahead.
IN-HOUSE LEGAL: Is the next European Commission going to be based on a coalition agreement in the Parliament?
REDING: That was already the case last time, with the Spitzenkandidaten process. While last time the two parties, the EPP and the Social Democrats had a majority, this time we will need three or four parties to reach a majority.
IN-HOUSE LEGAL: Will the Spitzenkandidat of the biggest party become the next Commission president again?
REDING: There will be a package deal. There is not only the presidency of the Commission that is vacant, but also that of the European Council, the European Parliament and the European Central Bank.
IN-HOUSE LEGAL: You served as a European commissioner for 15 years. What can an individual commissioner accomplish?
REDING: The Commission is a team effort, it is not a presidential system. While the Commission president represents the institution to the outside world, each commissioner is in charge of his or her department. A lot depends on the personality of the commissioner: Is her or she putting dreams into practice? Or are they just following the advice given by civil servants? It’s to a large extent a question of individual strength and political know-how.
IN-HOUSE LEGAL: You were also an MEP for 15 years. Has your view of the European Parliament changed?
REDING: It has gained more power.
IN-HOUSE LEGAL: Apart from the digital world, one of your key actions has been to promote gender equality. What needs to be done on a European level to make progress here?
REDING: We are still very far from equality. When I was commissioner, I put forward a directive calling for equality between men and women on the supervisory boards of publicly listed companies. That was supposed to push open a door – and send a signal.
I wanted women to understand that they can reach the top. When girls only see men in grey suits sit on company boards, they will rightly doubt about heir own capacity to climb up the ladder. My proposals created an enormous discussion, and that was exactly what I wanted. Civil society woke up, and female lawyers and journalists in Germany, for example, formed lobby groups. They realised that unless they supported the ideas, no action could succeed. I think it’s important that civil society acts, especially on topics such as this.
IN-HOUSE LEGAL: Should there be quotas?
REDING: I personally don’t believe in quotas, but they are an efficient instrument and discussion was certainly very helpful drawing attention to the issue – everybody started to wake up…
A lot has improved, but we still need a push in some countries. If you want a working woman to have a career and a family – something that is already possible for a father, but not always for a mother – you have to give them a helping hand.
As society, we invest enormously into the education and knowledge of girls and women. We build up that strength – and then squander it. Not utilise it is absolutely counterproductive and wealth-destructive.
IN-HOUSE LEGAL: Do you think we are going to see a “No-deal Brexit”?
REDING: Brexit is going to be extraordinarily damaging, for society and for business. Some small and medium-sized companies in Great Britain still hope that it is not going to happen, but if you look at the economy, it already has. Manufacturers and banks have started to move business out of the UK.
In my 40 years in politics, I have not seen a sham like that. A proud nation decomposes itself. Normally, in such a situation of national crisis, politicians would sit together and try to negotiate a constructive way out. Here, one has the impression that the divide becomes deeper and deeper. It looks like science fiction, not real. There seems to be no more common sense.
Interview: Michael Thaidigsmann, Marten Männis