Elon Musk’s Wake-up Call for Europe

Viewing Elon Musk’s recent forays into (electoral) politics in Europe primarily as a geopolitical wake-up call to European leaders, our analysis focuses on the promise and relative weaknesses of law and policy solutions as well as institutional arrangements the EU has put in place to protect European democracies from foreign interference.

The international (legal) order is changing rapidly and the EU finds itself in an increasingly difficult situation. As many analysts and practitioners have been warning for years, the Union risks being weakened by a new multipolar power constellation in which it mainly has observer status. The experts’ warning covers a range of issues, from industrial policies to trade models and defence agreements, and comes in various forms: some advocate supply chain security, others write about the necessity of (strategic) autonomy, still others urge for greater competitiveness, and finally, there are those who call for digital sovereignty.

Regardless of the thematic focus or framing, the main message is essentially the same: the EU and its Member States must adapt quickly to the new international realities if they do not want to be norm-takers rather than norm-shapers on major international dossiers. In the wake of the Russian aggression against Ukraine, the EU has been remarkably reactive on security and defence as well as justice issues. Similarly, the Union displayed a lot of dynamism during the COVID-19 pandemic, allowing for the EU-wide borrowing through the one-time NextGenerationEU. However, at a time when the rules and cards of the international game are being reshuffled, the bloc is somewhat at a loss as to the effective long-term strategy it should pursue to protect not only prosperity but also the system of rights and values that the Union has created over the past decades. Indeed, Member States lack a shared vision on how to proceed—be it in political, legal, industrial, or financial terms.

New geopolitical realities threatening democratic foundations

The EU’s democratic foundations are being put to the test by different players in various contexts. The list of incidents is long and, for the sake of brevity, we will only refer to a few major ones to illustrate our point. There are the controversial Musk moves on social media in respect of the upcoming federal elections in Germany—including offensive messages on the social media platform X on Germany’s chancellor and federal president, or the infamous Musk–Weidel interview on X backing the AfD, Germany’s far-right. There’s also the Romanian case, where the previously little-known far-right candidate Călin Georgescu made it to the second round of the presidential election and even came first in the vote. Declassified information shows that his election campaign had apparently benefitted from Russian interference. The alleged interference, which came in the form of a state-sponsored covert action, included the creation of a large network of bots on TikTok, coordinated cyber-attacks, and covert campaign financing (Georgescu himself had declared zero campaign expenses). And let’s not forget Russia’s disinformation and (war) propaganda campaigns via state-controlled media outlets, which led to the banning of several Kremlin-controlled media in the EU.

Regardless of the differences in facts and figures, the bottom line of these developments is that the democratic foundations of European societies have been seriously tested. More precisely, these incidents are a manifestation of the same problem: a foreign actor—be it a war criminal at the head of an increasingly brutal autocratic regime or a technology tycoon turned presidential adviser—is trying to influence European voters using modern communication channels which, partly, escape European control. It appears that the EU and its Member States are not particularly well equipped to deal with the situation, which is worrying as (at least some of) these strategies of foreign interference seem to be taking hold.

The peril of foreign interference has already been recognized in case law related to EU sanctions. In its 2022 judgment in RT France v Council, the General Court had to ponder individual rights limitations—among others the freedom of expression—with the collective good of European democracy. And so, when asked to judge whether the limitation imposed on the freedom of expression (of RT) was legal, the Court answered in the affirmative. It reasoned inter alia, that (i) hybrid campaigns were henceforth part of modern warfare and that (ii) spreading misinformation and (war) propaganda posed a serious threat to the very foundations of European democratic societies [para. 162]. For decision-makers, the challenge is hence twofold: to devise a response that does not unfairly or disproportionately restrict fundamental rights, but that is effective in safeguarding democratic processes and structures.

The end of the Brussels effect?

Effectiveness is indeed a key issue. The ban on broadcasting RT and other Russian outlets spreading misinformation and war propaganda under the EU sanctions regime is said to lack effectiveness and to be too easy to circumvent. Similarly, the Romanian case shows that the current legislation regulating major platforms— notably the DSA—has shortcomings, one of which is that its risk mitigation focus privileges a posteriori action. Also, many European standards in the area of social media are based on the assumption that relevant companies  act in good faith and cooperate willingly, including on the basis of voluntary code of conducts. Yet, many US-based technology companies seem to have less appetite for abiding by the European policies on content moderation in the new Trump era, which could seriously put at risk the EU’s digital governance framework and warrants a serious European law and policy response.

So the EU’s relatively successful regulatory model—described in the literature as the Brussels effect—appears weakened under current geopolitical conditions and in the face of new actors. It remains to be seen whether this weakening is particularly pronounced in the digital domain, where the EU had been lauded for its normative clout in the past. At this junction, it is interesting to note that the European Commission seemed initially relatively reluctant to trigger procedures under the DSA following Musk’s overt AfD support via X and, reportedly, only extending its investigation into the X platform after being under public pressure. It could appear that Commission officials preferred to maintain stable EU–US relations before Donald Trump took office, rather than to strain relations by implementing more drastic measures under the DSA as it is unclear whether Musk acted as tech tycoon and owner of X or as future advisor to the Trump administration. This says a lot about the EU’s current geopolitical situation: it finds itself between a rock—risking open conflict with one of the world’s most influential tech actors and chief adviser of the new US president—and a hard place—remaining silent when European democratic processes are potentially undermined by foreign (private) actors.

The interweaving of the internal and external dimension

Be that as it may, there is a trend at the EU level to interweave different strands of internal and external law and policy to get to grips with the complex phenomenon of foreign interference. This intertwining can be seen in policy strategies and institutional set-up.

When it comes to policy strategies, two documents are particularly noteworthy. First, the 2022 Strategic Compass called for the creation of an EU Hybrid Toolbox as a framework for a coordinated response to hybrid campaigns. As discussed in scholarly literature (see here or here), the main objective of these hybrid campaigns is to exploit the weaknesses of the intended target via coercive and subversive means, while creating ambiguity in order to avoid suffering the consequences of a political or military (including cyber) attack by the international community. Within this framework, the EU laid last year the groundwork for the establishment of EU Hybrid Rapid Response Teams.

Second, in 2024, the Commission proposed the European Democracy Shield (EDS). Inspired by the French Viginum and the Swedish Psychological Defence Agency, the EDS is designed to defend European democracy in conjunction with a raft of EU legislative acts and proposals—namely the DSA, the AI Act, the Democracy Action Plan, and the Democracy Defence Package. While its thematic and geographical contours are still unclear, the EDS’ intended core function is to serve as a comprehensive EU structure to combat foreign information manipulation and interference.

Regarding institutional (re-)arrangements, several EU institutions have reshuffled their internal structures, mirroring the complex phenomenon of hybrid threats. On 18 December 2024, the European Parliament set up a special committee on the EDS, building on the work of the special committees INGE 1 and 2, which focused on combatting foreign interference respectively. The decision setting up the new committee emphasizes that the potential effects very large online platforms can have on democratic processes in the Union shall be evaluated [1.(a)(vi)] and also repeatedly stresses the external dimension of the issue [cf. 1.(a)(iii);(viii);(xii);(xiii);(c);(g)]. Remarkably, and in contrast to the mandate of its predecessor committees, the competence of the new special EDS committee explicitly comprises cyberattacks on military targets, underpinning our interlacement argument that the EU is interweaving different strands of internal and external law and policy to respond to interference.

Similarly, the European Commission established a Commissioners’ Project Group on Democracy on 7 January to counter both the internal and external dimensions of foreign interference. Led by the Commissioner for Democracy Justice, the Rule of Law and Consumer Protection, Michael McGrath, the group is tasked with supporting the preparation of the EDS, preventing the dissemination of disinformation via online platforms, and protecting electoral processes.

Who calls the shots?

While it is probably a wise strategy to tackle the complex matter of foreign interference from different though complementary angles, it also presents intricacies. In EU governance, internal and external action do not necessarily follow the same logic or patterns in terms of actors, instruments, procedures, and competences. This is not an insurmountable obstacle, but rather a challenge as it (potentially) raises competence issues, both horizontally and vertically. Indeed, in respect of Elon Musk’s recent agitations on X, for instance, the acting French foreign minister stated that, if the Commission was not enforcing existing legislation, then it should give Member States back the power to do so.

Already previously, the RT France case, in which the EU banned a state-controlled Russian media outlet from broadcasting in EU territory, exemplified the competence issue. While the Council based the ban on RT France (and other media outlets) on a CFSP legal basis (namely Article 29 TEU), the applicants argued that it was merely a matter of media regulation and hence beyond the Council’s competence. In its decision, the Court showed sensitivity to the external facet of foreign interference and disinformation, stating that the CFSP dimension of the ban on the media outlet prevailed. The Court pointed to the Council’s broad discretion and emphasized the complementary Union competences in that area [para. 61]. Possibly, a similar line of reasoning could be applied in the future to measures adopted to counter hybrid threats.

Legal challenges (ahead)

This brings us to the legal challenges of countering foreign interference, which the Romanian case encapsulates.

Essentially, dealing with hybrid threats is a cross-cutting legal issue in which different bodies of (public) law—namely constitutional law, EU law, and international law—interact. At the national level, the Romanian Constitutional Court annulled the election results after the declassified information notes became known. Importantly, the Court did not solely base its decision on Romanian constitutional and national election law but made reference to EU secondary law (the Political Advertising Regulation) and soft law documents of the Venice Commission to bolster its annulment decision on the grounds of the non-transparent use of digital technologies and artificial intelligence in the electoral campaign and the financing of the electoral campaign from undeclared sources. (For further analysis of the decision, see Selejan-Gutan; Maftean; Kuti; Carrozzini on this blog.) What is more, Georgescu lodged a complaint to the ECtHR, trying to introduce another legal layer to the matter, namely international human rights law. However, the ECtHR rejected the request for interim measures on 21 January, as the request did not concern an imminent risk of irreparable harm. This rejection notwithstanding, the question of (State’s) positive obligations to combat election irregularities will likely be discussed by the ECtHR in future cases (cf. Shattock). Also, at the EU level, the European Commission took measures in line with the DSA Regulation in relation to TikTok, including the opening of formal proceedings, which is likely to result in further legal developments.

Finally, the Romanian case exemplifies the crucial fundamental rights questions that arise in countering foreign interference. The core question is to what extent the EU’s response to foreign interference needs to be—and is allowed to be—more assertive. The restriction of fundamental rights of some individuals or entities (e.g., online platforms or actors deemed anti-democratic) may be necessary to protect the democratic process and uphold the fundamental rights of others, such as the right to vote. So there is an inherent tension between systemic and individual interests and rights, which was also addressed in the RT France decision: said decision emphasised the importance of upholding democratic debate, peace, and international security in order to justify restrictions on fundamental rights of certain individuals/ entities [para 193]. The exact limits for the restriction of fundamental rights in specific cases to counter hybrid threats will likely become a hotly debated topic in the future as relevant legislation and case law develops.

For us as scholars, this—admittedly worrying—development promises to provide much more food for thought and analysis in relation to the fight against foreign interference. Once again, the key question will be how the EU can guarantee the effectiveness of its laws and policies while maintaining a high level of protection for fundamental rights.