The legitimacy of standardisation as a regulatory technique. A cross-disciplinary and multi-level analysis, Mariolina ELIANTONIO and Caroline CAUFFMAN (dir.)

Mariolina Eliantonio, Caroline Cauffman

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In this book, sixteen contributors from a wide range of sectors addressed the question of the legitimacy of standardization as a regulatory technique. The study is divided into two parts, a general one, which examines "horizontal issues" from different legal and economic perspectives, and a rather sectoral one, which looks at "standardization in specific policy areas".

The first part includes, inter alia, the analysis of competition law as a tool to ensure the legitimacy of standardisation by the European Standards Organisations, the examination of the contradictory approach of the Court of Justice of the European Union to the judicial review of standards, and the question of liability for deficient standards of the European Standards Organisations. The second part focuses on standardisation in the financial, telecommunications, food safety or health product sectors.

The authors point out that European and international standards are increasingly pervasive in current regulation, covering, for example, areas as diverse as cosmetics, lifts and accounting, illustrating the fact that markets are largely defined by standards. It is therefore not surprising that they enter the European legal system in a variety of ways, relevant to both public and private law, and give rise to a multitude of legal issues.

Stressing that the commercial benefits of the use of standards in regulation are undeniable, that their flexibility and adaptability to a rapidly changing society are also undisputed, and that an increasing number of standardization processes have moved from the purely private to the public regulatory domain, the authors raise the still open question of the legitimacy of standardization as a regulatory technique in the European Union. They explain that the use of standardisation as a regulatory technique could be considered problematic because private regulators do not have to comply with the same transparency requirements and are not subject to the same control and accountability mechanisms as governmental actors. Consequently, the authors raise in all their various contributions the question of whether the standardization process, with its economic and commercial benefits, offers sufficient guarantees of legitimacy. In doing so, they make use of three aspects of legitimacy - the legitimacy of the (procedural) contribution, the legitimacy of the (material) production and the legitimacy of the output.

Caroline Cauffman and Marie Gérardy demonstrate that, in most cases, European competition law and standardisation pursue the same objectives, namely to maximise the efficiency of the economic system and to increase consumer welfare. Consequently, they examine whether and to what extent European competition law, and in particular Article 101 TFEU, can be considered as a tool to enhance the legitimacy of the process of developing harmonised European standards and whether such standards, resulting from complex cooperation between the European Commission and the European Standards Organisations, can fall within the scope of Article 101 TFEU and be considered as the result of an agreement between undertakings or a decision by associations of undertakings. Secondly, they examine how the competition law requirements imposed on standardisation agreements by the Horizontal Guidelines correspond to the criteria of legitimacy. Referring to the internal regulations, guides and guidance documents of the European Standards Organisations and the national standards bodies and having conducted interviews with the national standards bodies, they concluded, inter alia, that the CEN-CENELEC standardisation process has considerable shortcomings when it comes to ensuring the requirements of participation, transparency and voluntary participation, and that there are still clear asymmetries between the financial, expertise and information resources of SMEs compared with those of the large industrial players. Nevertheless, they believe that, due to the close links between the criteria for assessing the compatibility of standards with Article 101 TFEU and the traditional legitimacy criteria, competition law has a clear potential to strengthen the legitimacy of standard-setting in the European Union.

Linda Senden proposes to revise Regulation (EU) No 1025/2012 not only to make harmonised European standards available free of charge by imposing the financial burden of developing technical standards on the public regulatory authority delegating this regulatory power to the European Standards Organisations, but also to recognise and clarify the possibility of judicial review of European harmonised standards in order to better resolve conflicts of legality, interpretation and liability. At the same time, Marta Cantero Gamito explains that standardisation in the field of telecommunications is institutionally organised by a hybrid system of committees and markets and concludes that, when it comes to globalised sectors such as telecommunications, further constitutional sophistication of standardisation according to delegation theories is probably not the required solution.

All in all, the various publications form a very successful body of work which, always with a view to legitimacy, sheds light on all possible aspects of the use of standards and the process of their development, while at the same time illustrating in a remarkable way the importance of interdisciplinary analysis.

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Author

  • University of Paris I Panthéon-Sorbonne

Quotation

Rebekka Schlieper, The legitimacy of standardisation as a regulatory technique. A cross-disciplinary and multi-level analysis, Mariolina ELIANTONIO and Caroline CAUFFMAN (dir.), November 2020, Concurrences N° 4-2020, Art. N° 97382, p. 277

Publisher Edward Elgar Publishing

Date 11 June 2020

Number of pages 320

Visites 61

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