Lawfare Daily: Itsiq Benizri on the Regulatory and Political Implications of Thierry Breton’s Resignation from the EU Commission

[Intro]

Itsiq Benizri: Internally, he was really an outspoken critic of von der Leyen. He actually tried to undermine her candidacy for a second term, and it looks like clearly his positions backfired on him.

Kevin Frazier: It's the Lawfare Podcast. I'm Kevin Frazier, Assistant Professor at St. Thomas University College of Law and a Tarbell Fellow at Lawfare, joined by Itsiq Benizri, counsel in WilmerHale's Brussels office.

Itsiq Benizri: Macron's political situation in France is already pretty weak. And in the EU, it's always been the case that your ambitions at EU level would be very much dependent on what you can do at national level, and he knows he can't do much.

Kevin Frazier: Today we're exploring the rise and rapid fall of Thierry Breton, a controversial and at times combative EU commissioner, who had no problems making policy personal. You may have heard of Breton in the wake of his social media skirmishes with Elon Musk over the Digital Services Act. His resignation may signal a pivot in the EU's approach to tech governance. Thankfully, Itsiq was available to help us sort through the tea leaves.

[Main Podcast]

So Itsiq, I have to admit, the things going on in the EU right now, it feels more like I'm watching a Bravo reality show than talking about politics, where we have people with interesting names, colorful backgrounds, lots of drama and intrigue. And if I had to bet a dollar, I bet before this episode of Thierry Breton resigning, no-one in the U.S. could name more than one EU commissioner, and now we know two, which is an improvement. We've doubled from just knowing the president, Ursula von der Leyen. And now we know two, Thierry Breton. So who is this man? Why are we so fascinated by him? And what does it mean for Europe? We're going to get to all of those slowly, but surely. But let's just start with that first question: who is Thierry Breton?

Itsiq Benizri: Sure. It's a very interesting perspective. You know, I can't remember who is the U.S. president once said, okay, I'm willing to call the EU, but who do I need to call?

But Breton would probably be very happy about you knowing him at least, although it's probably a bit late. But so, I mean, I can go back, you know, he has history. He has a pretty impressive background. The first thing I would say about him, which I think is very interesting is that he actually trained as an engineer. So he's very different from all those politicians you typically tend to find in Brussels who, you know, they regulate digital and tech, but they have no clue about what it is exactly. He actually, you, one thing you could say about him is that because he trained as an engineer and he created a software engineering company in the early 80s, I think, then he has this background. He knows what he's talking about.

And then he had an interesting career move because in the 90s in France, he worked in global information tech companies, before he entered politics and even when he started his political career, it was initially to save French tech companies from bankruptcy, and you had a lot of them at the time. So you know, the interesting thing is that even when he became a politician, he was still close to the tech industry. At the time, he was called a turnaround whiz because he saved so many French companies from bankruptcy. That was pretty impressive. I think there is no debate about the quality of his job at the time. And then he held various positions that were very important at national level at the time. He just, he was a minister of finance in France, but I think for a short period, that was just for two years.

And then moved back to another French tech security company called Atos, that's a very famous one, at least in Europe. There's one thing I would say about his time at Atos that I personally find very interesting because I can relate. He said that he wanted to ban internal email and he called it the pollution of the information age. I can very much relate to that. And so the interesting thing about that is that it's not just that you wanted to kill email. You wanted to have something else instead. And what he wanted to have instead was basically an internal social network within the company. And he wanted to have, you know, something you would develop internally, but also that could be aggregated from other vendors.

And that's interesting because obviously I'm not saying Breton is entirely in favor of social media. But that, you know, anecdote shows that he's clearly interested in them. He has nothing against them. So that's for sort of his early career before he moved to the Commission. When he moved to the Commission in 2019 and he stayed there for five years, he was very strict about what he considered to be abuses by the U.S. big tech companies.

Kevin Frazier: Well, and before we move on to his approach as a commissioner, can you detail a little bit more for our listeners two things? Just in case some of us, and I can't imagine there are any listeners out there, aren't entirely familiar with the EU Commission itself. So can you set the stage just there for who is it comprised of? How do you get selected to join the EU Commission? And then how has it determined what issues you have within your portfolio as a commissioner?

Itsiq Benizri: That's a fairly complicated question. I mean, it's a complicated topic. So I do appreciate that people are not familiar with this. I could talk about this for hours, so let me try to make it relatively simple, at least I'll try. So, at EU level, you have three main bodies: the European Commission, the European Parliament, and the Council of the EU. The parliament is essentially deputies who are being elected directly at national level. And then the Council of State is sort of exactly the opposite. It's all chief of states gathering on regular occasions to decide that you know, the next big moves that you'll get to see in the EU.

And then sort of in between, and then things depend on your political opinions, but sort of in between you have the Commission. At the top of the Commission, you have the president. The president of the Commission when Breton joined was Ursula von der Leyen. She was the president at the time and she has been re-elected. So, she's still president. As the president of the Commission, she proposes who will be part of her team. And those people will be the commissioners, and I'll get back to that in a sec.

But so, essentially what the Commission does, is that it has the main, probably the most important thing you need to know about the Commission is that only the Commission can propose new laws in the EU. So once a commission has issued a proposal, the parliament will get to discuss it, will get to amend it. And then the Council of the EU, so all the chief of states together, et cetera, they will chime in as well. But only the Commission can propose something. So that's very important. And they are also then in charge of implementing and enforcing the EU policies. So it's not perfectly accurate. But you may kind of see it as a government. A lot of people would probably be crazy about that, like you cannot say that, et cetera, I'm oversimplifying. That's the idea.

Kevin Frazier: Well, that's totally okay. You know, here we're used to having to listen to songs about how a bill becomes a law. So we very much understand that sometimes you got it, you got to simplify things get the sausage out of the question and just give us the high level summary and I think one thing that I also want to stress for listeners is that each of the EU member states has a commissioner and they're each assigned some portfolio.

So there are a whole lot of shenanigans that can go around with respect to assigning those portfolios, who gets the big ones, like internal markets, which is what Breton was assigned, which obviously has a lot of implications if you're setting industrial policy and also as part of Thierry Breton's portfolio was that, digital policy. And so can you give us a sense of how, as an EU commissioner, how did Breton initially latch onto this portfolio over digital policy and internal markets? Was he always the person that Americans may know today who was tweet-slapping Elon Musk, or did he come in maybe a little bit more sociable and willing to work with everyone?

Itsiq Benizri: Yeah, very good question. So, you know, first of all about the political process. So, the president of the Commission proposes candidates for future commissioners to the Parliament. But before that, she, because in the, in this case it's von der Leyen, she's not making those decisions on her own. So, she does indeed get proposals from national chief of states. And that's, that’s, there's a fair amount of negotiation there, right?

So typically, to give you just one quick example that is about Breton, because von der Leyen really wanted Breton out, what she negotiated with Macron, French president, is that France would get a more impressive portfolio, but then they would have to get rid of Breton. So, and that's the kind of things you typically tend to see at EU level. Okay, get me a stronger personality, you'll get a less significant portfolio. Get me someone I can work with, you know, someone who's more easygoing, et cetera, and then you'll get something really amazing. That tends to be the process.

Now Breton was known. I mean, his personality was known at the time already. He's just, he has, that's why I thought it was interesting to give you a sense of like what he used to do before. He tends to be this typical CEO, you know, with this attitude of, sort of, you know, like Steve Jobs-like, like, this is what I think this is what has to be done. Can you explain why this has not been done already? So I think he was known for that. Maybe she, maybe von der Leyen didn't think he would go that far, but at least in France they knew.

Kevin Frazier: And so when we say we didn't think he would go that far. What was it that is indicative of Breton causing such consternation among an EU Commission which, from an American perspective, never makes headline news? And yet suddenly, we're reading about this commissioner, we're seeing our tech giant CEOs go into tweet-to-tweet combat with him. Why was this such a combative relationship? What was it about his regulatory agenda that was not only frustrating the rest of the EU Commission, but folks like Elon Musk?

Itsiq Benizri: Sure. I like the way you put it because there are two angles indeed. There's why people started hating him in Brussels, and then why people started hating him on the other side of the Atlantic. So, in Brussels, typically, I would start by saying that what he did was very unusual for Brussels. I can fully understand why people don't know commissioners, EU Commissioners in the U.S., frankly, most of the time in Europe, people don't know them. The reason for this is that because most of the time they have a very sort of, you know, technocratic profile. And they're not really, yes, of course they are politicians, but they stick to the Brussels bubble. They're not very noisy. They're not flashy. They're not anything like that. And Breton was exactly the opposite. So that was very unusual for Brussels.

Internally, he was really an outspoken critic of von der Leyen. He actually tried to undermine her candidacy for a second term, and it looks like clearly his positions backfired on him. That is the most important thing here. There are other things as well. His relationship with another famous commissioner. Her name is Vestager. She was really the most important one before he joined. And then he sort of became the most important guy in the room. So there are all those things.

Kevin Frazier: Let's dive into that relationship with Vestager, because I think most people have heard Vestager and the critical role she played in bringing some massive enforcement actions against American companies. So she was headline news for a brief period. What was it about Breton’s regulatory approach that allowed him to start to eclipse her? What made it so aggressive? What specific policy approaches, when we think about the Digital Markets Act, for example, or the EU AI Act, was he really as important to those efforts as he would probably tell people he was, or-? What was the perception in Brussels and across the EU there?

Itsiq Benizri: You know, at the end of the day, there are very large teams full of brilliant lawyers and politicians and anything you can imagine who are working on those cases. And at the end of the day, probably politicians get the credit. So clearly it's part of what he did, but he was a bit pushy. So I would say he encouraged, he really wanted things to be done. And these, because everything in the EU tends to be so slow. Everything we, because it's because of, you know, the EU political structure comes as a result of a fair amount of compromises, et cetera. So all those processes mean that every time you want to do something, it, you know, it's going to be incredibly slow. And that's probably what, where you could see Breton’s impact. Because it's true that we have actually seen a fair amount of regulations over the past few years. Now, whether you would have had reached the same result with someone else? I'm not sure, could be. I guess he had an impact. It's probably not as big as what he would pretend, but he did have an impact.

The same, like Vestager also was very pushy. I mean, this idea that she focused so much on, you know, the tech, the Big Tech industry, it's really her thing. I mean, we've had competition law enforcement in Europe for decades. And as a, you know, I was trained as a competition lawyer and I always felt it could apply to all companies. And since Vestager was appointed, it felt like, Oh no, it's not for everyone. It's just for, you know, the Big Tech. So they do have an impact. Now, the one thing that you can tell about Breton is that he gets the job done. Really, he did. But the style that he had clashing with Elon Musk on X, for example, that is something you'd never get to see in Europe.

Kevin Frazier: Can we just pause there for a second? Can you detail, in case we have some folks who have flown off to Bluesky or in the Mastodon worlds, what was the nature of the relationship between these exchanges of Breton and Musk? Can you tell us a little bit more about these tweet battles?

Itsiq Benizri: I can talk about that. And then this is about one specific regulation that Breton liked very much. There are other regulations that he managed to get published. And so I can talk about that too, if you like, but then just focusing on this one for now, it's the one that we call the DSA. So it stands for Digital Services Act. Essentially, it requires platforms to remove illegal content promptly and to implement measures to combat online disinformation and illegal products as well. It's more complicated, of course. There are specific transparency requirements for the largest online platforms. And that applies in particular to advertising.

So you've heard the word largest online platforms. And so, you know, it's about X as well. And the thing is, you also know about Elon Musk's very strong positions about free speech in the U.S., etc. So that's where the clash comes from, because the DSA is not intended to sort of prohibit free speech, obviously, but it's really to fight online disinformation. And you know that Elon Musk has this position that you could pretty much say whatever you want. That is just something that, you know, is not accepted at all in Europe and certainly not by Breton. And that's why they had this clash with, with Breton, you know, going after him, going after Musk and, you know, saying, well, you will-. I'm coming after you. You will need to comply with everything we do, and Elon Musk was clearly not happy with that. Well, so that's where, how they had this fight when the-.

One example that is really, it's interesting, it's an interesting story about how you could have a clash between how people started to hate Breton in Europe, in Brussels, sorry, and then how Musk was so angry at him is when Elon Musk started interviewing Donald Trump on X. And after that, Breton sent that crazy letter to Elon Musk saying no, no, no, you haven't, you don't understand. You need to play by the rules, et cetera. And that's a very interesting example because obviously Elon Musk was very angry. I'm not going to say how he reacted because that's probably, you know, not appropriate. But the interesting thing is that he was super angry and the Ursula von der Leyen here in Brussels was super angry as well, because he hasn't told anyone about, you know, that letter that he would send. It was just his idea and he just did it. And it's just not the way you work here. So that's the, I would say, the background to this clash.

Kevin Frazier: So going rogue was increasingly, it seems, Breton's MO, which as you pointed out is not the Brussels status quo. The Brussels status quo would be adhering to what von der Leyen suggests as the way forward and not having commissioners go rogue. And so we can obviously see quite a bit of tension that gave rise to Breton feeling as though he needed to resign.

But you mentioned earlier, some of these negotiations that were going on in the background. So Ursula von der Leyen gets elected to another term, is now tasked with forming a new college of commissioners. And now we get some interesting backroom dealings with her and Macron. And so you mentioned earlier, hey, send us a new commissioner, we'll give you a better portfolio. And so who do we think this new commissioner will be? And did France get an expanded portfolio or were they left with maybe missing some part of Breton's previous portfolio?

Itsiq Benizri: Yeah. So France gets something else essentially, which is probably interesting for them. It's more about strategic autonomy. Those are the things that they always wanted to have. It's, I mean, strategic autonomy is going to be part of it, but it's what they would call industrial policy. And you can see how those two things are related. The fact that, this is about France is interesting because it relates to their sort of political culture.

The French would tell you it goes back to Charles de Gaulle at the time with this idea that they have to be very autonomous, which means we should not rely too much on the U.S. We should have our own military, our own army, we should have a strong economy, we should have our own tech, et cetera, et cetera. And there is a big influence. This really has a huge influence on all those politicians. The candidate that France has now, he needs to be confirmed by the parliament, but his name is Stéphane Séjourné. And he is, he's a very close friend of Macron, French president. But you will only have part of what Breton would have loved to have.

So it's just industrial policy and you do get a fair amount of strategic autonomy there. This is where von der Leyen has been incredibly smart because she's split all these roles. So, one person is going to have industrial policy. Another one is going to have security and tech, and I'll get back to that in a sec. And so on, and so on. And so the idea is that because everything is so divided, at the end of the day if you want to do something, you need von der Leyen. Which is very smart because Breton was, you know, his attitude was, it was really coming after her. So she wanted to avoid that, I guess.

Kevin Frazier: And one of those critical pieces that you were mentioning, that gets left out of this new portfolio is that digital policy and so the very aspect of kind of the DSA and the DMA getting left out now of the French portfolio and instead going to what I've heard is a somewhat no-name, the Finnish commissioner picks up digital policy. Which, nothing against Finland, but very few people think Finland and tech enforcement. And so is that another example of von der Leyen wanting to make sure that it's her stamp on tech policy that wins at the end of the day?

Itsiq Benizri: Absolutely. Absolutely. You can tell that she didn't want to have a Breton Beast or Breton Junior or whatever you could call that person. So yeah, you're right. She, it's, her name is Virkkunen. She has a totally different background, also a very different personality. So, in terms of background, I think she is, she studied philosophy and she worked as a journalist before she became a deputy. Very different from the engineer slash CEO guy.

She doesn't have a strong track record when it comes to digital regulations. It doesn't mean she hasn't done anything. She has done a few things. She was a part of the parliament committee when they investigated the use of surveillance spyware. She was also a reporter for something they've done on digital platforms that was actually already seven years ago, I think. So she has done things, okay, but it's not comparable. Let's face it.

Kevin Frazier: She won't be engaging in any Twitter battles with Elon Musk. We can rest assured there.

Itsiq Benizri: I would be very surprised if she were to do that. I don't think she will. She has you know, she just has a different personality to start with. Actually, we don't know her very well, but that's already a sign. You know, she also, I think, to be confirmed, right. But I also feel like she has a different approach. Breton was, again, that's a culturally, that is a very French thing to do, but to be that will to, that willingness to intervene you know, and have new regulations and really regulate actively. She doesn't seem to have that. She made statements in the past where she said, we need less regulations. We need less regulations. We don't need to stifle innovation, et cetera. So very different approach.

Kevin Frazier: So there's been a huge effort to try to read the tea leaves after Breton's resignation about what does this mean for the future of tech regulation generally, for the regulation of social media platforms, for AI, so on and so forth. Do you buy into those who are saying that we may see milder enforcement efforts going forward. Is this a sort of inflection point? Are we going to have a pre-Breton era and a post-Breton era of maybe a kinder or slower EU with respect to these enforcement actions?

Itsiq Benizri: That's a very good question. Look, I would say there are probably two different ways to look at it, which is one, what we have already and two, what she's been asked to do.

The first thing I would say is. Are we going to see less regulations? I mean, frankly, first of all, personally, I think that would be a good thing because there's been this trend in Europe over the past few years to come up with new regulations again and again and again. And as someone who is advising clients in, you know, on all those regulations, one thing I can tell you for sure is people have thought a lot, you know, about how to draft each one of those regulations individually.

But I'm not sure they have considered, you know, to the same extent, the interactions between all those regulations. So you, it's very often the case that you read one thing and you're like, okay, that's what I need to do. And then you're like, oh, wait, but then how does that work with these other requirements that I have under that other regulation? And then you're lost. And it's very often the case that when you ask lawmakers, they don't know themselves. So-

Kevin Frazier: And it’s important to point out too, we not only have the DMA, the Digital Markets Act, the DSA, the Digital Services Act, the EU AI Act, but also that the EU is increasingly considering what they call the Digital Fairness Act, bringing their consumer protection regulations up to date, which would add another regulatory maze to the puzzle. So it's interesting hearing your perspective to say, when you go to a client and you have to list out all these acronyms just to get through that list is impressive in and of itself. But then to potentially have that holistic jigsaw puzzle add up to something that looks more like a Rubik's Cube than a straightforward puzzle, I can see why that might not have a whole lot of innovation-minded people being very excited.

Itsiq Benizri: Exactly, exactly. It's really incredibly complex. I agree with everything you've said, there is more. There are things that we've almost forgotten about because they've been here for a long time now, but the obvious regulation that, you know, comes to the one that comes to my mind, obviously is the GDPR, which is about, you know, regulating data protection and that data plays horizontally, right? So it applies across all regulations.

You have other things that we'll see, I mean, hopefully we'll see at some point. There's the one called the ePrivacy. So, if you are in the telecom industry, ePrivacy is intended to provide for more specific rules than the GDPR. What we currently have is the GDPR and then the ePrivacy, what we call the ePrivacy Directive, which was adopted, like, decades ago. And so at some point they wanted to adapt it and make sure it would be aligned with the GDPR. And it's been going on for years and years and years, and we still don't have anything. So you have also that kind of things. Then you have the more classic tools. You mentioned the DMA. Well, how, what is the interaction between the DMA and classic competition law? That's one question. The other question is what is the interaction between the DMA and data protection?

Let me give you a very quick example because you've mentioned the tech industry and how they approach this. One thing that is it's really a hot topic in Europe at the moment is what we call pay or okay models. So it's essentially this idea that you would tell your users okay. Either you pay a certain amount of money, it's a monthly subscription to use the service, or you don't want to pay, but then hopefully you do understand that I'm going to process your data for advertising purposes, because after all it's pretty cool that you're using my service, but I'm still here to make money. And so there are rules about how, you know, those things interact under the GDPR. Like, typically, can you say that in those circumstances that I've just described, people are actually consenting? Like, is, can you actually say that consent is free? And there are crazy discussions about it. And so the, umbrella group for all European data protection authorities is looking into this at the moment, but then simultaneously, in parallel, you have the European Commission investigating similar practices. What are you supposed to do? It's very complex.

Kevin Frazier: Well, so to not only add to that regulatory can of worms. We have this political intrigue induced by Breton and everything that's following in his wake. So I guess one final question would be, some folks are additionally reading into this whole situation that perhaps this is indicative of Macron's kind of influence and France's influence, perhaps slightly being on the wane, given that he's suffering some political setbacks at home. Things don't appear quite as stable and Stéphane Séjourné, assuming he is the commissioner, isn't going to be a Breton, isn't going to be someone who's forcing the EU forward on these regulatory actions. So, is it too much to read into this situation that France has maybe seen a softening of its influence or do you think there's some credibility to that?

Itsiq Benizri: No, I think that's a good point. It's a good point. Now, to be honest, and I think you've just mentioned it, Macron's political situation in France is already pretty weak. And in the EU, it's always been the case that your ambitions at EU level would be very much dependent on what you can do at national level, and he knows he can't do much.

So frankly, even if he had someone else, even if he had Breton again there, what would be his political impact at EU level. Everybody knows he cannot get re-elected. Everybody knows he has a minority in his parliament now. He doesn't have a proper majority. And so that makes the voice of France as a country clearly weaker at EU level as well. So yeah, no, I think that's a good point. And clearly I think von der Leyen took advantage of this because she, that's how she could bargain this because she knew Macron really didn't really have another choice.

Kevin Frazier: Well, I think I'm going to have to find some popcorn and get ready to binge the rest of this season because it is quite fascinating. Everything that's going on. Thank you so much for joining us at Itsiq. I think we'll have to leave it there.

Itsiq Benizri: Sure. Thanks for having me.

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