Last month, American tech companies were dealt two of the most consequential legal decisions they have ever faced. Both of these decisions came from thousands of miles away, in Europe. While companies are spending time and money scrambling to understand how to comply with a single decision, they shouldn’t miss the broader ramification: Europe has different operating principles from the U.S., and is no longer passively accepting American rules of engagement on tech.
In the first decision, Apple objected to and was spared a $15 billion tax bill the EU said was due to Ireland, while the European Commission’s most vocal anti-tech crusader Margrethe Vestager was dealt a stinging defeat. In the second, and much more far-reaching decision, Europe’s courts struck a blow at a central tenet of American tech’s business model: data storage and flows.
American companies have spent decades bundling stores of user data and convincing investors of its worth as an asset. In Schrems, Europe’s highest court ruled that masses of free-flowing user data is, instead, an enormous liability, and sows doubt about the future of the main method that companies use to transfer data across the Atlantic.
On the surface, this decision appears to be about data protection. But there is a choppier undertow of sentiment swirling in legislative and regulatory circles across Europe. Namely that American companies have amassed significant fortunes from Europeans and their data, and governments want their share of the revenue.
What’s more, the fact that European courts handed victory to an individual citizen while also handing defeat to one of the commission’s senior leaders shows European institutions are even more interested in protecting individual rights than they are in propping up commission positions. This particular dynamic bodes poorly for the lobbying and influence strategies that many American companies have pursued in their European expansion.
After the Schrems ruling, companies will scramble to build legal teams and data centers that can comply with the court’s decision. They will spend large sums of money on pre-built solutions or cloud providers that can deliver a quick and seamless transition to the new legal reality. What companies should be doing, however, is building a comprehensive understanding of the political, judicial and social realities of the European countries where they do business — because this is just the tip of the iceberg.
American companies need to show Europeans — regularly and seriously — that they do not take their business for granted.
Europe is an afterthought no more
For many years, American tech companies have treated Europe as a market that required minimal, if any, meaningful adaptations for success. If an early-stage company wanted to gain market share in Germany, it would translate its website, add a notice about cookies and find a convenient way to transact in euros. Larger companies wouldn’t add many more layers of complexity to this strategy; perhaps it would establish a local sales office with a European from HQ, hire a German with experience in U.S. companies or sign a local partnership that could help it distribute or deliver its product. Europe, for many small and medium-sized tech firms, was little more than a bigger Canada in a tougher time zone.
Only the largest companies would go to the effort of setting up public policy offices in Brussels, or meaningfully try to understand the noncommercial issues that could affect their license to operate in Europe. The Schrems ruling shows how this strategy isn’t feasible anymore.
American tech must invest in understanding European political realities the same way they do in emerging markets like India, Russia or China, where U.S. tech companies go to great lengths to adapt products to local laws or pull out where they cannot comply. Europe is not just the European Commission, but rather 27 different countries that vote and act on different interests at home and in Brussels.
Governments in Beijing or Moscow refused to accept a reality of U.S. companies setting conditions for them from the outset. After underestimating Europe for years, American companies now need to dedicate headspace to considering how business is materially affected by Europe’s different views on data protection, commerce, taxation and other issues.
This is not to say that American and European values on the internet differ as dramatically as they do with China’s values, for instance. But Europe, from national governments to the EU and to courts, is making it clear that it will not accept a reality where U.S. companies assume that they have license to operate the same way they do at home. Where U.S. companies expect light taxation, European governments expect revenue for economic activity. Where U.S. companies expect a clear line between state and federal legislation, Europe offers a messy patchwork of national and international regulation. Where U.S. companies expect that their popularity alone is proof that consumers consent to looser privacy or data protection, Europe reminds them that (across the pond) the state has the last word on the matter.
Many American tech companies understand their commercial risks inside and out but are not prepared for managing the risks that are out of their control. From reputation risk to regulatory risk, they can no longer treat Europe as a like-for-like market with the U.S., and the winners will be those companies that can navigate the legal and political changes afoot. Having a Brussels strategy isn’t enough. Instead American companies will need to build deeper influence in the member states where they operate. Specifically, they will need to communicate their side of the argument early and often to a wider range of potential allies, from local and national governments in markets where they operate, to civil society activists like Max Schrems.
The world’s offline differences are obvious, and the time when we could pretend that the internet erased them rather than magnified them is quickly ending.
