The Role of the EU in Transnational Legal Ordering
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The Role of the EU in Transnational Legal Ordering

Standards, Contracts and Codes

Edited by Marta Cantero Gamito and Hans -W. Micklitz

This book explores questions of transnational private legal theory in the context of the external dimension of EU private law. The interaction between existing theories of transnational ordering and the external reach of European Regulatory Private Law is articulated through examination of what are found to be the three major proxies of transnational private ordering: private contracts, standards and codes.
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Chapter 2: Private standards as a replacement for public lawmaking?

Rob van Gestel and Peter van Lochem

Abstract

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.

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