Comparative Law and Regulation
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Comparative Law and Regulation

Understanding the Global Regulatory Process

Edited by Francesca Bignami and David Zaring

Governance by regulation – rules propounded and enforced by bureaucracies – is taking a growing share of the sum total of governance. Once thought to be an American phenomenon, it is now a central form of state action in every part of the world, including Europe, Latin America, and Asia, and it is at the core of much international lawmaking. In Comparative Law and Regulation, original contributions by leading scholars in the field focus both on the legal dimension of regulation and on how this dimension operates in those places that have turned to regulation to meet their obligations.
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Chapter 5: Regulatory procedure and participation in the European Union

Stijn Smismans


Participation is at the centre of democratic decision-making. In both political theory and public law, the predominance of representative democracy as a normative framework has led to a focus on the legislative process, with the key actors of public rulemaking being conceived of as elected representatives, on the one hand, and “neutral public officials”, on the other. The reality of public policy-making, however, is far more complex, involving actors such as interest groups, civil society organisations, firms, non-governmental organisations (NGOs) and individual citizens long before the idea of “networked governance” became a popular term in the literature. Yet, on the European continent in particular, public lawyers have paid little attention to such intermediary actors. As their role is not set out in national constitutions, they remain off the radar of constitutional lawyers. At the same time, scholarship on European administrative law has focused on individual rights vis-à-vis the administration rather than on group action in the policy process (Harlow, 2006: 120). Rare exceptions have focused on the issue of interest group litigation, rather than on processes of interest representation or lobbying in rulemaking. The same can be said of the literature on interest group participation in European Union (EU) policy-making: there is an extensive political science literature on EU lobbying (Finke, 2007; Eising, 2008) but legal scholars have shown little interest in the topic, except for the issue of locus standi in the European Court of Justice (Barnard, 1995; Micklitz and Reich, 1996; De Schutter, 2006).

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