(iPoster) Enforcing Digital Europe: Experts and Outsourcing in the Digital Service Act

• In Event: Poster Session: Information Technology and Politics & Science, Technology, and Environment
  In Poster Session: Poster Session: Information Technology and Politics

Abstract

During the first Presidency of European Commission leader Ursula von der Leyen (2019-2024), the European Union pursued an ambitious multi-pronged agenda for technology policy. A central pillar of the new strategy involved a series of regulatory proposals intended to curb the unwanted excesses of certain digital business models, built upon two major new legal frameworks: the Digital Services Act (DSA) and Digital Markets Act (DMA), which outlined significant new rules that would need to be followed by virtually all companies offering online services in the EU and would apply immediately in all member states without requiring their transposition into national law (Bradford, 2023; Husovec, 2024).

All of these policies were highly contentious, the site of extensive interest group politics and legal challenges from major multinational technology companies (Gorwa et al. 2023). Nonetheless, despite the opposition, these complex new rules have gone into force, and after more than five years of politicking and policymaking, the von der Leyen Commission has stated its intention to focus on the ‘implementation and enforcement of the digital laws adopted during the last mandate’ (European Commission, 2024; Draghi, 2024). This is sensible: effective enforcement is crucial for meeting the policymaker preferences that led to new regulatory regimes (Short, 2021), and the ambitious EU tech policy agenda is likely to be no exception. However, the path ahead is treacherous. Tech policy discussions have in recent years become increasingly geopolitical and contentious, being ‘weaponized’ and intertwined with trade, industrial, and foreign policy (Farrell & Newman, 2023), and there are already some indications that the new Trump administration wishes to push back against costly European lawmaking and protect certain ‘national champion’ firms. Tech policy is also becoming increasingly complex, and the difficulties in implementing and enforcing it effectively have resulted in changes to key European institutions. Notably, with the long-standing exception of competition law, the European Commission has historically acted as a policy-making body, and not as a regulatory agency, a role in which it is increasingly being pressed into following concerns about the inability of member state regulatory authorities (especially those based in corporate-friendly countries like Ireland and Luxembourg) to adequately fulfil their duties on key issues like data protection (Jang & Newman, 2022).

At the current juncture, the European policymaking apparatus is facing increasing demands upon its capacity as an effective rule-maker and enforcer, but must meet these demands within an increasingly complex and politicized environment. In this paper, we explore one major strategy through which the Commission has deployed in response to this challenge: an apparent increasing reliance on external experts and consultants. Through a public procurement process, the Commission has been seeking external capacity that appears not just intended to support its work through additional research and analysis, but deeply shape the central pillars of the EU tech policy agenda, such as DSA implementation and monitoring (including when it comes to fundamental aspects of the regulation’s design, for example relating to the DSA’s ‘risk assessment framework’).

The goal of this paper is to understand these policy outsourcing dynamics empirically and put them in a broader context. Through an analysis of the Commission’s tendering process, the EU’s procurement portal, and documents obtained via freedom of information request, we ask the following descriptive questions: What kinds of substantive issues/topics relevant to digital policy are being tendered? How is the process set up institutionally? Who are the actors getting these tenders? Our analysis builds upon existing work that challenges the assumption that the EU’s use of experts is merely technocratic (Hartlapp et al., 2014; Metz, 2015): our interviews with both EU officials and consultants involved in the tendering process show that the role of experts is political and can be used strategically to depoliticize an especially contentious process of policy creation. But it also shows the complex regulatory politics of capacity building and policy delegation in the EU, given our finding that many of key expert consultants being called upon have close ties to major member states like Germany and the Netherlands (via government-linked think tanks and national research centres), and that many of the tenders in question are structured in an open-ended fashion more akin to building policy networks rather than classic dynamics of outsourcing typical of political consulting (Seabrooke & Sending, 2022).

Authors

• Robert Gorwa, WZB Berlin Social Science Center

• Paddy Leerssen, University of Amsterdam