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van Gestel, Rob; van Lochem, Peter --- "Private standards as a replacement for public lawmaking?" [2020] ELECD 362; in Cantero Gamito, Marta; Micklitz, -W. Hans (eds), "The Role of the EU in Transnational Legal Ordering" (Edward Elgar Publishing, 2020) 27

Book Title: The Role of the EU in Transnational Legal Ordering

Editor(s): Cantero Gamito, Marta; Micklitz, -W. Hans

Publisher: Edward Elgar Publishing

Section: Chapter 2

Section Title: Private standards as a replacement for public lawmaking?

Author(s): van Gestel, Rob; van Lochem, Peter

Number of pages: 27

Abstract/Description:

From a traditional constitutional perspective, regulatory duties should be carried out by persons directly accountable to the electorate. Since the EU legislator frequently outsourced a lot of technical rulemaking to private standardization bodies, this became complicated due to the Meroni doctrine of the CJEU, which seemed to prohibit delegation of rulemaking powers to private organizations. The idea behind this is what Stewart branded the transfer of legitimacy from parliament via delegation to nonelected bodies, which can be held accountable by the people, the ‘transmission belt theory’. We argue that this theory is incapable of warranting the legitimacy and effectiveness of modern regulatory regimes in which private standards and agency rulemaking are used to implement, supplement, and sometimes even replace secondary legislation. We illustrate this by studying the EU’s New Approach and sketch three possible scenarios to remedy existing problems: the agency model, the public–private partnership model and the disentanglement model.