Elon Musk joining Trump's team would not impact EU Commission's X probes

If Elon Musk takes up a role in the incoming administration of US President-elect Donald Trump, he could still be held personally liable by the European Commission if it detects a breach by his company X of the bloc’s platform rules, according to a spokesperson for the EU executive.

"The election in the US will not impact our enforcement work to ensure compliance with the Digital Services Act in the European Union," the spokesperson said, when asked if an appointment for the X CEO within the new administration would have an impact.

The EU executive is expected to wrap up a probe into X it started last December under the Digital Services Act (DSA) - for allowing dark patterns and failing to curb the spread of illegal content - within months. It’s unclear if this will happen by 20 January, when the new US administration will take office. 

Euronews reported last month that the Commission can decide to fine either a natural or legal person – whoever is making the business decisions and exercising decisive influence over the platform – under the DSA.

Whether Musk, the billionaire owner of companies Tesla, Neuralink and SpaceX, is legally considered to be the personal provider of X remains moot. If so, any potential fine issued for breaching the DSA would be calculated on the basis of the provider's total worldwide annual turnover. 

However, the spokesperson said that "it is only necessary to definitively identify the provider of a very large online platform at the stage of a final decision."

'A star is born'

In August Trump said he “certainly would” name Musk to a cabinet or advisory role if elected, adding that Musk was “a brilliant guy”. In his victory speech on 6 November, the President-elect said: “We have a new star — a star is born, Elon Musk.”

Musk, previously a Democrat-supporter, swapped sides to back Trump's bid for the White House and said last month that he would be open to entering politics, despite not wanting to increase his “risk of being assassinated”. 

“But the stakes are so high that I feel I have no choice but to do it,” he said in Pittsburgh.

If Musk becomes secretary or special advisor to the government led by newly elected president, it seems unlikely that he would be granted any immunity.

J. Scott Marcus, associate senior research fellow at EU affairs think tank CEPS, told Euronews that while Trump was granted a very wide-ranging immunity by the Supreme Court, "government officials are [also] pretty much immune from prosecution by foreign governments or private suit over acts in their official capacity." 

He added, however, that he "highly doubts" that any of these would cover Musk, "since these were acts in a private or personal capacity prior to his appointment."

'Sanctions will be applied'

Musk already had a spat with former EU Industry Commissioner Thierry Breton, who reminded him of the EU platform rules ahead of an online interview with Trump.

Breton, who resigned from the job in September, said in an interview with Euronews' podcast Radio Schuman that while he is not in charge of the DSA anymore, "If there is something which has to be corrected, it will be."

"The sanctions will have to be applied to everybody and also [be] scrutinised," Breton said of DSA enforcement, adding that the most important is the rule of law. "I have zero doubt that this will be applied." 

Whether the EU would want to trigger the type of political dispute that might unfold if it holds Musk personally accountable is another question. 

"At a philosophical level, EU courts might not sustain a fine based on turnover of Musk’s satellite venture or of Tesla. The fine is capped as a percentage 'of the annual worldwide turnover of the provider of intermediary services concerned'. Including revenues that have little to do with X would be quite a stretch," Marcus said. 

Numerous CEOs and businesspeople have held public posts in the US administration. Examples include Rex Tillerson, the former CEO of energy giant ExxonMobil, who was nominated as secretary of state during Trump's first mandate. 

If Musk gets awarded a public job, it remains to be seen what he can do in favour of the technology industry. Several Big Tech companies have complained about the strict regulatory environment in Europe, including Meta and Apple.