The (un)lawfulness of European standardisation

In April, ECOS took part in a conference on European standardisation and associated constitutional challenges, organised by the Swedish Network for European Legal Studies (SNELS).

Private rule-making has become an important regulatory mechanism in EU governance in areas such as financial markets, food safety, product safety, data protection and environmental protection. The Commission’s ‘Better Regulation’ package issued in May 2015 encourages the use of both regulatory and well-designed non-regulatory measures (i.e. standards, voluntary initiatives etc).

The involvement of private parties in EU governance has the potential to help deliver policies based on the expertise and experience of the future regulated sectors. However, private-party rule-making raises numerous concerns with regards to transparency, inclusiveness and legitimacy.

The conference examined the system of co-regulation using European standardisation and discussed the challenges faced in different sectors of EU law (administrative, constitutional, intellectual property). Participants questioned the legitimacy of using EU standardisation for regulatory purposes, in a context where transparency and balanced stakeholder participation are not always guaranteed. Many researchers stressed the need for EU institutions to grasp greater control over the development of European standards developed in support of EU laws and policies. This includes increased transparency on the content of European harmonised standards (i.e. free-of-charge public availability).

A special issue of the Swedish Network for European Legal Studies’ publication on this topic is expected this summer.