Source: French to English Tester Published on: 2026-05-05
Source: The Conversation – in French– By Nicolas Minvielle, Doctor in Economics, specialist in innovation and defense issues, Audencia
Free trade, conceived as a factor of peace since the post-war period, has become a source of tensions, particularly in the face of the digital dominance of the United States. The European Union, highly technologically dependent, faces an international and internal legal framework that limits its sovereignty. However, it has legal and regulatory levers to act. Between resorting to security exceptions and a cooperative model inspired by Airbus, the future of European digital sovereignty rests on a collective strategy combining law, technology, and political will.
“The spirit of commerce cannot coexist with war,” stated Emmanuel Kant, introducing the idea thateconomic logic opposes that of armed conflict. It is following this logic that the international order after the Second World War was built, with theGeneral Agreement on Tariffs and Trade (GATT)(1947),the World Trade Organization (WTO)(1995) and the integrated European market, one of whichabsolute principles is free movementand the opening of markets to any operator established in the territory of the European Union (EU).
This freedom of trade, which therefore sets itself a pacifying goal,is today a source of various conflicts, the economic actors becoming vectors for spreading political or societal models. While this observation is not recent, the European awakening is.The ban on residing in the United Statesfrom Thierry Breton, European Commissioner from 2019 to 2024 and a key figure in European legislation on digital services (DSA), as well as the ambition for strategic control over Greenland displayed by the Trump administration, have catalyzed the awareness of the EU’s diplomatic vulnerability vis-à-vis its American ally.
This diplomatic vulnerability is coupled with a deep dependence in digital matters. In 2024, theDraghi reportemphasized that Europe’s dependence on third countries, starting with the United States, was over 80% for its digital usages. The EU’s determination toregulate the digital giantsis a source of regular tensions with Washington, which uses the predominance of its economic actors to decide on retaliatory measures against Europe. It is in this context that the question arises of the possibility of a real sovereignty of the EU in the digital domain.
The international legal framework, apparent obstacle to digital sovereignty
It is not obvious to find in ainternational law constantly flouted, the keys to building a European digital sovereignty. This law was built on aabsolute free-trade objective. The challenge is all the greater because the globalization of exchanges has favored the development of extraterritorial laws, breaking theWestphalian concept of territorial sovereigntyA legal transformation that establishes an asymmetric power relationship in favor of the power capable of leveraging its technological and monetary dominance.
In the field of digital technology, this paradigm shift is driven by legislations such as the Cloud Act, whichrender classic legal protections obsolete in the face of foreign injunctions, placing states without such levers of domination in a situation of critical digital dependence.
And yet
Within the EU, free movement is the foundation that has enabled the integrated market â themore integrated into the world – to come into being. Logical corollary, European law prohibits member states from favoring their national companies (non-discrimination) and opens its public markets to“to any supplier legally established in the EU”.
Complemented by the free trade rules established by GATT and the WTO, European law is often held responsible for the permanent establishment of the GAFAM on European soil. BecauseIt is this free trade framework that enabled the emergence of “platform states”, recognized as genuine actors in international relations. Proof, if any was needed, of the quasi-sovereign recognition of the digital giants, Denmark created in 2017 a position of“Ambassador to the GAFA”, later joined by the United Kingdom, Austria, and France, with less binding names (technology envoyin the United Kingdom, ambassador for digital affairs in France).
Paradoxically, these digital giants today surpass the order that brought them into existence by making the “classical” states and their sovereignty obsolete. Even more, theyinfluence new generation free trade agreements(like the Trans-Pacific Partnership, TPP, which became the Comprehensive and Progressive Agreement for Trans-Pacific Partnership orCPTPP) to introduce clauses limiting the capacity of governments to regulate the digital environment. Thus, they benefit from a favorable international framework that allows them to operate everywhere.
But theLegal submission to the country of origin remainsand benefits the States from which these giants emerge, who transform the new frontiers of digital thus drawn into powerful tools of influence. Recent example: in 2025, Microsoft hasbeen forcedto enforce the sanctions imposed by the Trump administration against Karim Khan, the prosecutor of the International Criminal Court, for issuing arrest warrants against several Israeli personalities. Because aprivate contract is never superior to national laws.
Thus, American sanctions, just like the Cloud Act, allow foreign authorities to intervene beyond their borders as soon as a connection with an American company exists. The topic is often addressed from the perspective of espionage risks, but in reality, the issue is broader and concerns the overall availability of service.
International law vs. European law: what European Union law allows
The criticism has been constant in recent years; that of an excessively open European market, sometimes synonymous with naivety. Onevery (too) strict respect for the GATT rules, and the international commitments of Europe – among which theGovernment Procurement Agreement – which guarantees non-discriminatory access to public procurement markets of the signatory States. Thus, the EU is impeded in any attempt to establish a European preference, by its internal law and by international lawthat it is today one of the last to be taken into consideration.
However, the EU is a recognized exception to free trade and tomost-favored-nation clause, since it has established an internal customs union, effectively removing all tariff barriers between member states. It forms a single customs territory and negotiates as such at the WTO.
The EU is sometimes considered an “unidentified object” of international law, which grants it particular levers of action. And while in certain areas it is deemed ineffective, it must be acknowledged thatshe shines through her regulatory creativity. For the EU is the only intergovernmental organization with its own legal order, autonomous and binding, whose application is guaranteed by the Court of Justice of the European Union. European law has been developed in the pursuit of a balance between integration and respect for state sovereignties.
Thus European jurists have thought aboutlevers relevant to mobilize todayto build the EU’s digital sovereignty. These are the levers that allowed France to develop its nuclear program by asserting theexemptions for national security. These are also the levers that allowed Airbus to come into existence,by forming dedicated consortiaFor strategic industrial projects. These may be the levers that will tomorrow enable the EU to have genuine digital autonomy.
The nuclear model or the strategic use of security exceptions for the EU, good or bad idea?
Article 346 of theTFEU, a fundamental treaty that organizes the competences of the EU, allows Member States to exempt themselves from competition rules to protect their “essential security interests.” A Member State could therefore theoretically invoke Article 346 to compel its government structures to procure from national actors for the provision of digital services. This would imply aextensive interpretation of the notion of essential security interests.
While EU case law has long been strict on the subject, it is interesting to note that the Court of Justice of the EU has gradually softened its position. Undoubtedly, the current security context is not unrelated. Thus, in 2018, the Court recognized thatArticle 346 could apply beyond the traditional military scope, as soon as the objective is to protect essential security interests.
If the lever exists, it is not necessarily said that it is the solution to the digital issue. Thus, Article 346 has allowed the development of national industrial and technological defense bases (BITD), whilefragmenting the European defense market. The development of the nuclear industry, allowed for its military aspect by Article 346, is a French success, not European. The technology, although complex, was manageable at the national level.
But when it comes to digital sovereignty, the effort must be collective. First because cyberspace is afundamentally transverse environmentand that the creation of a trusted industrial base requires pooling resources. Then because only acoordinated European actionwill allow the exercise of the normative power of the EU. Finally, because the use of Article 346 would de facto lead to a weakening of the European internal market, where cooperation is a condition for success.
The Airbus model or the future of the technology-law-politics triptych
Because there are European successes, the model developed by and for Airbus, although divergent on many aspects, can be enlightening for building tomorrow’s digital independence.
Airbus is the result of a shared realization, that the aerospace industries of certain member states (France, Germany, etc.) were unable to compete with Boeing. And the awareness of an associated risk, that of weakening European sovereignty. It is therefore a political will and atransnational institutional cooperationAirbus was born. This political will was backed by a certain technological effort, which allowed the development and market launch of the A300,first wide-body civil airliner, equipped with only two engines.
Regarding digital technology, the technological breakthrough would not be that of the product, but the approach aiming topromote a basic infrastructure (Foundation Model) open. Which would allow a multitude of actors to build their own solutions on this basis, and to reduce dependence on the Gafam.It is this path of technological autonomy that the EU appears to be pursuing.
The third pillar of construction – and perhaps the essential one – for Airbus was law.
For example, the European subsidies necessary for industrial investments were allowed under EU law, althoughchallengeable (and challenged) before the WTO. The famousLaunch Aidwere based on Article 107 of the TFEU, which states that aid granted by Member States that distort competition is prohibited, but may be authorized if it is “intended to promote the realization of an important project of common European interest.” On the legal side, Europe stood its ground against the WTO, then the United States, whosanctioned Airbus for violating competition rules.
It is this normative force that can be mobilized to support the development of a European digital ecosystem. It already is with theGeneral Data Protection Regulation(GDPR) and by what is referred to as theBrussels Effect – or extraterritorial effect of European law. From a purely normative standpoint, the Cloud and AI Development Act (CAIDA) draft, which will be debated in Brussels in May, could lead toto qualify the cloud and AI services of critical infrastructures, those leavingde factoof the classic free competition framework. It remains to be seen whether the Member States will converge towards a substantial text, not weakened by theincreasing lobbying investments of the GafamIn Brussels.
This article was written with Marie Devaux, a part-time lecturer at Sciences Po Aix.
Nicolas Minvielle is a member of the steering committee of the Fabrique de la Cité. He was a facilitator of the Defense Red Team of the armed forces and is a retired Lieutenant Colonel within the Future Combat Command of the Army. He is also a member of the collective Making Tomorrow.
–ref. European digital sovereignty: what legal and political levers?https://theconversation.com/european-digital-sovereignty-which-legal-and-political-levers-280240