Huawei challenges legality of 5G bans in Poland, Romania

National 5G security rules 'are predicated on several violations of EU law,' Chinese firm tells Commission.

Huawei challenges legality of 5G bans in Poland, Romania

Chinese telecoms giant Huawei has told top European lawmakers that Warsaw and Bucharest risk violating EU law with new 5G security rules, offering a glimpse into possible court battles over new telecom security policies.

In a letter sent to EU competition chief Margrethe Vestager on September 11, the Chinese firm said proposed 5G security rules in Poland and Romania — two countries that have taken a hawkish approach to Chinese technology over the past year — “are predicated on several violations of EU law.” The company also took aim at bilateral “joint declarations” that Warsaw and Bucharest signed with the U.S. administration.

Any legal challenge to national 5G security legislation in Europe would be a test case for Europe’s nascent “technological sovereignty,” the notion that Europe should be autonomous in the digital sector and not rely on foreign companies or governments. In a series of legislative initiatives EU lawmakers are walking a fine line between reducing Europe’s dependency on foreign players like Huawei and U.S. cloud providers, and avoiding discriminatory bans on foreign companies that would breach the EU’s and international open market policies.

In its letter, obtained by POLITICO through an access to documents request, Huawei argued Poland and Romania seek “to exclude suppliers on the basis of biased and ambiguous criteria targeting certain 5G suppliers because of their geographic origin.”

“Huawei objects to these legislative proposals that are contrary to the fundamental principles of the EU,” the company wrote.

Poland and Romania, which are in the process of adopting new 5G security rules, would breach EU treaties and principles of legal certainty and predictability, the firm argued. They are also depriving Huawei from the right to appeal decisions and are rigging spectrum auctions against EU telecom rules, it said.

The European Commission is coordinating the implementation of new 5G security rules across the bloc. While it doesn’t have to power to stop countries from taking national security measures, it can intervene if governments impose telecom laws that breach EU-wide rules.

‘Legally sound’

Huawei has previously challenged U.S. regulators’ decisions that blocked it from the U.S. market, but so far has failed in its attempts to overturn those decisions in court.

In Europe, the company has largely played nice with national governments, hoping to fend off hard bans, but it has still seen market restrictions increase in past months.

Governments like France, Denmark, the Netherlands, Belgium and others have taken far-reaching steps to decrease Huawei’s presence in 5G networks. Sweden even imposed an all-out ban on Chinese kit for large parts of its networks. Countries’ actions follow a Europe-wide process to beef up 5G security with recommended measures in the EU’s “toolbox” agreed at the start of 2020.

While Huawei has built a legal case against excessive measures, the Commission dismissed concerns about the measures being in violation of EU law.

“The EU adopted an objective and risk-based approach to 5G cybersecurity,” a spokesperson for the European Commission said, adding that EU countries have committed to “objective and risk-based decisions” and “proportionate measures that are legally sound.”

The EU’s plan allows countries to impose rules through European telecoms legislation, the EU’s law on cybersecurity in critical infrastructure and cybersecurity certification schemes, the Commission spokesperson said.

“These measures are non-discriminatory in the sense that they do not target any particular supplier or country,” the spokesperson added.

European countries have based a large part of new 5G security measures on the idea of pushing out “high-risk vendors.” But they steered clear of naming Huawei and its smaller Chinese rival ZTE as the targets of their legislation and avoided mentioning China explicitly in public remarks — in large part due to concerns over legal repercussions.

Still, “member states have the right to decide whether to exclude companies from their markets for national security reasons,” the spokesperson said.

US bilateral deals in crosshairs

The Chinese firm in its letter also took aim at bilateral deals signed between European capitals and the United States State Department — for whom severing links between its allies and China is a strategic priority. Huawei said Poland and Romania were “favoring U.S. national security priorities over EU policies” through the deals.

These agreements, called “joint declarations” or “memoranda of understanding,” are essentially political pledges to push out suppliers that are subject to foreign influence, lack transparent ownership and have faced allegations of intellectual property theft in the past.

Washington had already signed similar deals with RomaniaPolandEstoniaLatvia, the Czech Republic and Slovenia. In its most recent diplomatic push this month, the U.S. got SlovakiaCyprusBulgaria, North Macedonia and Kosovo to sign on as well.

None of the deals mention Huawei explicitly, but U.S. Secretary of State Mike Pompeo has been explicit on his trips about whom exactly the agreements are meant to shut out.

Nicholas Vinocur contributed reporting.

Want more analysis from POLITICO? POLITICO Pro is our premium intelligence service for professionals. From financial services to trade, technology, cybersecurity and more, Pro delivers real time intelligence, deep insight and breaking scoops you need to keep one step ahead. Email pro@politico.eu to request a complimentary trial.