The EU has taken a different tack on digital rules, with most agreements including limited rules related to digital and data flows


As outlined elsewhere, the EU has historically taken a softer stance on digital trade rules. This was illustrated during the Obama-era. The push for mega-regional trade agreements opened up negotiations including the Transatlantic Trade and Investment Partnership (TTIP), a proposed agreement between the US and EU.

Whilst similar agreements of this era, such as the TPP, include significant texts on digital trade, the EU was more reluctant to negotiate in this area.

Economic domination of US digital firms in EU consumer markets was already evident and the EU was reluctant to agree to binding rules such as thefree flow of data with the United States. The potentially more interventionist directions of Europe’s digital strategy within the Digital Single Market (DSM) are also likely to have influenced this position.

Given the EU’s size and coherency, as a single-bloc it was able to resist US demands on digital trade. Such rules did not appear in drafts. Ultimately TTIP negotiations were unsuccessful in general, and were suspended at the beginning of the Trump presidency.

EU Free Trade Agreements

The EU has begun to introduce rules on digital trade in its own free trade agreements. They have tended to be much more modest than US agreements and up until recent times many agreements did not include significant sections in this area.

This has evolved slowly. The recent EU-Vietnam Free Trade Agreements signed in June 2019 and EU-Singapore Agreement signed December 2018 are still relatively light. Both includes rules on custom duties but alongside less controversial rules on consumer protection and e-signatures. In both examples, chapters on E-commerce are still relatively short.

There are some indications of the EU is strengthening its approach in some agreements. The EU-Japan Economic Partner Agreements (EPA) signed in July 2018 included rules around issues such as prior authorization and forced source code disclosure. In other areas there is still light undertaking, particularly on the free-flows of data where there is only an agreement to review the issue in three years.

There are indicators that the EU may wish to use its power as a bloc when negotiating digital trade with smaller nations. Drafts of the Deep and Comprehensive Free Trade Agreement (DCFTA) between the EU and Tunisia showed a shift towards a stronger position. This draft is one of the first from the EU that might contain binding rules on free data flows which have not been part of earlier European trade agreements.