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Private Power and Public Authority in European Union Law

Published online by Cambridge University Press:  27 October 2017

Extract

European union law is currently undergoing a transformation as profound as that forged by the ‘1992’ project which prompted the article by Joseph Weiler of that name. If that project was an intensification and broadening of EC law making, this new transformation is altogether of a more subtle nature. On the one hand, there is a commitment to a drastic reduction in the number of EU laws on the statute book. About one third of Union legislation is to be repealed, recast, modified or simplified. Alongside this, one finds an expansion of pan–European norms. In 2003, the main European standardisation body, CEN, adopted 888 standards. This one year’s work equated to more than were adopted in the whole period prior to the end of 1992. One view might be that this is some ‘retreat by the state’. These types of norms are developed by private actors, and maybe a simple privatisation of the legislative process is taking place. This explanation is unconvincing, however. Studies in other fields have found private law making to be accompanied by more pervasive and further reaching forms of administrative intervention.

Type
Research Article
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2006

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References

1 Weiler, JThe Transformation of Europe’ (1990) 100 Yale Law Journal 2403 CrossRefGoogle Scholar.

2 Commission, Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions—Implementing the Community Lisbon Programme: A Strategy for the Simplification of the Regulatory Environment, COM(2005)/535 final.

3 European Committee for Standardization (‘CEN’) Annual Report 2004–2005 (Brussels, CEN, 2005) 22.

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5 European Parliament, Council and Commission, Interinstitutional Agreement on Better Law Making, OJ 2003 C 321/1 (herinafter referred to as the Interinstitutional Agreement).

6 There is little literature on private law making in Union law. The big exception is the masterpiece by Harm Schepel: Schepel, H The Constitution of Private Governance (Portland, Ore Hart Publishing, 2004)Google Scholar. See also Schepel, H, ‘Delegation of Regulatory Powers to Private Parties under EC Competition Law: Towards a Procedural Public Interest Test’ (2002) 39 CMLRev 31 Google Scholar; Senden, LSoft Law, Self-regulation and Co-regulation in European Law: Where Do they Meet?’ (2005) 9:1 Electronic Journal of Comparative Law Google Scholar.

7 Case C–415/93, Union Royal Belge des Sociétés de Football Association v Bosman [1995] ECR I–4921.

8 Case C–309/02, Radlberger Getränkegesellschaft v Land Baden-Württemberg [2004] ECR I–11763.

9 Joined Cases C–94/04 and C–202/04, Cipolla v Fazari, OJ 2004 C 179/6.

10 Case C–341/02, Commission v Germany [2005] ECR I–02733.

11 European Parliament, Resolution on the evaluation report from the Commission to the Council and the European Parliament on the application of the Council Recommendation of 24 September 1998 concerning the protection of minors and human dignity, OJ 2003 C 127E/667.

12 Charter of Fundamental Rights of the European Union, OJ 2000 C 364/1.

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14 Above n 5.

15 Commission, White Paper on Governance in the European Union, COM(2001) 428.

16 Interinstitutional Agreement, above n 5, at paras 20–21.

17 Ibid, para 23.

18 On the approach see Council Resolution of 7 May 1985 on a new approach to technical harmonisation and standards, OJ 1985 C 136/1. See also European Parliament and Council Directive 2001/95/EC of 3 December 2001 on general product safety, OJ 2002 L 11/4, Art 3(2).

19 For a list of the relevant Directives see www.newapproach.org/Directives/DirectiveList. asp.

20 CEN, above n 3, at 21.

21 Ibid, 22.

22 The mandate for this is provided in the Commission, Communication to the European Parliament and the Council on the Role of European Standardisation in the Framework of European Policies and Legislation, COM(2004)674; Council, Conclusions on European standardization, 14790/2/04 REV 2. The Commission has now devised an Action Plan setting out precise measures: Commission, Action Plan for European Standardisation, April 2006, final, available at http://ec.europa.eu/enterprise/standards.policy/action-plandoc/standardise-action- plan.pdf

23 The most comprehensive recent discussion is to be found in Commission, Communication-Partnership for Change in an Enlarged Europe—Enhancing the Contribution of European Social Dialogue, COM(2004)557.

24 Art 139(1) and (2) EC. On this provision see Schiek, DAutonomous Collective Agreements as a Regulatory Device in European Labour Law: How to Read Article 139 EC’ (2005) 34 ILJ 23 CrossRefGoogle Scholar.

25 The database for all the texts is to be found at http://europa.eu.int/comm/employment_ social/dsw/actFindRecord.do.

26 This has been renewed, albeit in rather loose form, for the period 2006–8: http://europa.eu.int/comm/employment_social/news/2006/mar/work_programme_2006_ 2008_en.pdf.

27 European Parliament and Council Directive 1999/93/EC of 13 December 1999 on a Communityframework for electronic signatures, OJ 2000 L 13/12, Annexes II and III. These are dealt with by the European Electronic Standardization Signature Initiative. It presents its results to the committee of national representatives set up under Art 9 of the Directive, available at www.etsi.org/technicalactiv/Electronic_Signature/ElectronicSignatures.htm

28 Council Directive 2001/115/EC of 20 December 2001 amending Directive 77/388/EEC with a view to simplifying, modernising and harmonising the conditions laid down for invoicing in respect of value added tax, OJ 2002 L 15/24.

29 European Parliament and Council, Directive 2002/21/EC of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), OJ 2002 L 108/33, Art 17 and 18.

30 Commission, eEurope 2005: An information society for all, COM(2002)263.

31 The central vehicle for standardisation in the Union is the ICT Standards Board (ICTSB). In addition to the three large European Standardisation Organisations, CEN, CENELEC and ETSI, it also comprises the European Committee for Banking Standards (ECBS); the ECMA, the organisation dedicated to Standardizing Information and Communication Systems; and the World Wide Web Consortium (W3C): www.eeurope-standards.org/ICTSB_members.htm.

32 For operational details see CEN, CENELEC, ETSI The Contribution of European Standardization to the eEurope Initiative: A Rolling Action Plan, Final Version 5.3.0 (Brussels, CEN, 2002).

33 Council, Towards Sustainability: A European Community Programme of Policy and Action in Relation to the Environment and Sustainable Development (‘Fifth Action Plan on the Environment’), OJ 1993 C 138/5, Ch 7.

34 Commission, Communication to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions—Environmental Agreements at Community Level—Within the Framework of the Action Plan on the Simplification and Improvement of the Regulatory Environment, COM(2002)412.

35 Commission, Communication to the Council, the European Parliament and the European Economic and Social Committee—Integration of Environmental Aspects into European Standardisation, COM(2004)130.

36 Details of the agreements can be found at: http://europa.eu.int/comm/environment/ co2/co2_agreements.htm.

37 The agreement is set out in Commission, Recommendation 98/480/EC of 22 July 1998 concerning good environmental practice for household laundry detergents, OJ 1998 L 215/73.

38 The agreement on PVCs is the Vinyl 2010 agreement which can be found at www.bpf.co.uk/bpfissues/vinyl2010.cfm.

39 Commission, Green Paper on Integrated Product Policy, COM(2001)68.

40 Commission, above n 36.

41 The standard constitutes the core of the Union eco-management and audit scheme which gives public recognition to, and public monitoring of, firms using this standard: European Parliament and Council, Regulation 761/2001/EC of 19 March 2001 allowing voluntary participation by organisations in a Community eco-management and audit scheme (EMAS), OJ 2001 L 114/1, Annex 1.

42 European Environment Agency (‘EEA’) Environmental Agreements—Environmental Effectiveness (Copenhagen, EEA, 1997).

43 European Parliament and Council, Directive 94/62/EC on packaging and packaging waste, OJ 1994 L 365/10, Art 22.

44 Commission, Communication to the Council and the European Parliament on Environmental Agreements, COM(96)561.

45 Commission, Notice—Guidelines on the applicability of Article 81 of the EC Treaty to Horizontal Cooperation Agreements, OJ 2001 C 3/26.

46 Regulation 1606/2002/EC on the application of international accounting standards, OJ 2002 L 243/1.

47 Ibid, Art 3(2).

49 On this see the Giovannini Group Second Report on EU Clearing and Settlement Arrangements (Brussels, Directorate General for Economic and Financial Affairs, 2003).

50 The other noteworthy piece of self-regulation is the aligning by the European Advertising Standards Alliance of national self-regulatory codes around common principles. The conver gence between these codes is so high that the Commission has indicated its willingness to consider whether they should replace EC advertising legislation: www.easa-alliance.org, viewed 20 May 2006.

51 European Parliament and Council Directive 2005/29/EC of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (Unfair Commercial Practices Directive), OJ 2005 L 149/22; Collins, HThe Unfair Commercial Practice Directive’ [2005] European Review of Consumer Law 417 Google Scholar; Stuyck, J Terryn, E and van Dyck, TConfidence through Fairness? The New Directive on Unfair Business-to-Consumer Commercial Practices in the Internal Market’ (2006) 43 CMLRev 107 Google Scholar.

52 Ibid, Art 6(2)(b).

53 Ibid Art 10.

54 Art 33 TEU.

55 Council, Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector, OJ 2003 L 192/54. This was preceded by a Joint Action in the field: Council, Joint Action of 22 December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on corruption in the private sector, OJ 1998 L 358/2.

56 Council, Action Plan to Combat Organized Crime, OJ 1997 C 251/1, Recommendations 6 and 7.

58 European Parliament and Council Directive 2001/97/EC of 4 December 2001 amending Council Directive 91/308/EEC on prevention of the use of the financial system for the purpose of money laundering, OJ 2001 L 344/76. See also the Protocol to the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, OJ 2001 C 326/1; Council, Framework Decision of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and proceeds of crime, OJ 2001 L 182/1.

59 See www.wolfsberg-principles.com/privat-banking.html. On their development see Peith, M and Aiolfi, G ‘The Private Sector becomes Active: The Wolfsberg Process’ available at www.wolfsberg-principles.com/pdf/wolfsbergprocess.pdf.

60 ‘Two in three company directors face 24 months in jail,’ 31 March 2004, available at www.btglobalservices.com/en/pressrelease/20040331.html.

61 Declaration of the European Council on Sport, EU Bulletin 12–2000, I–31, Annex I V.

62 Parrish, R ‘The Politics of Sport Regulation in the European Union’ (2003) 10 JEPP 246; Weatherill, SSport as Culture in EC Law’ in Smith, R (ed) Culture and European Union Law (Oxford, Oxford University Press, 2004)Google Scholar.

63 Case T–313/02 Meca-Medina v Commission, Judgment of 30 November 2004, not yet reported.

64 Art III–282(1) CT.

65 The Commission definition of a professional body is, therefore, that of a non-governmental self-regulating body: Commission, Communication to the Council, the European Parliament, the European Economic and Social committee and the Committee of the Regions– Professional Services—Scope for more reform—Follow-up to the Report on Competition in Professional Services, COM(2005)405, 4.

66 The extremely diverse and complicated legal regime on this is now consolidated in European Parliament and Council Directive 2005/36/EC of 7 September 2005 on the recognition of professional qualifications, OJ 2005 L 255/22.

67 Case C–309/99, Wouters, Savelbergh, Price Waterhouse Belastingadviseurs BV v Algemene Raad van [2002] ECR I–1577. See also Case C–35/99 Arduino [2002] ECR I–1529; Joined Cases C–94/04 and C–202/04 Cipolla v Fazari, Opinion of A G Maduro of 1 February 2006, not yet reported.

68 Commission, Communication-Report on Competition in Professional Services, COM(2004)83.

69 Commission, above n 65.

70 For example, Teubner, GBreaking Frames: The Global Interplay of Legal and Social Systems’ (1997) 45 American Journal of Comparative Law 149 CrossRefGoogle Scholar.

71 Rose, N Powers of Freedom (Cambridge, Cambridge University Press, 1999) 18 CrossRefGoogle Scholar.

72 On the ‘publicisation’ of the private see Freeman, JExtending Public Law Norms Through Privatization’ (2003) 116 Harvard Law Review 1285 CrossRefGoogle Scholar.

73 Commission, ‘The Role of the Authorities in Standardization under the New Approach’ (Commission Working Document of 15 November 1999). See also Commission, ‘Note for the Attention of the Senior Officials Group on the Standardization and Conformity Assessment Policy’ (Commission Document No SOGS N 404 FR), 2001 available at http://portal. etsi.org/public-interest/Documents/mandates/N404%20EN-role%20of%20mandates.pdf.

74 Interinstitutional Agreement, above n 5, at para 23.

75 More generally, see Prosser, TPublic Service Law: Privatization’s Unexpected Offspring’ [2000] Law and Contemporary Problems 63 CrossRefGoogle Scholar.

76 Above n 5, at para 23. The threat of disenfranchisement is also a key requirement for the legality of national regimes. Typically, these will be seen as anti-competitive arrangements unless the state retains the power of legislative last resort and the power to review any standard: Case C–35/99, Arduino [2002] ECR I–1529.

77 Boli, JWorld Polity Sources of Expanding State Authority and Organization, 1870–1970’ in Thomas, J, Meyer, J, Ramirez, F and Boli, J, (eds) Institutional Structures: Constituting State, Society and the Individual (Beverley Hills, Cal, Sage, 1987)Google Scholar.

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90 Case C–205/03P, FENIN v Commission, Opinion of AG Poiares Maduro, November 2005, not yet reported, para 31.

91 For example, the criteria set out by the Commission for approving environment agreements, above n 44 and 45.

92 Turner, BThe Erosion of Citizenship’ (2001) 52 British Journal of Sociology 189 CrossRefGoogle ScholarPubMed.

93 On a definition of the policing role see Jones, T and Newburn, T Private Security and Public Policing (Oxford, Oxford University Press, 1998) 18–19Google Scholar.

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95 Moore, MIntroduction to Symposium: Public Values in an Era of Privatisation’ (2003) 116 Harvard Law Review 121 Google Scholar; Gerstenberg, O What Constitutions Can Do (But Courts Sometimes Don’t): Property, Speech and the Influence of Constitutional Norms on Private Law (Cambridge, Mass, Harvard Center for European Studies Working Paper No 110, 2004)Google Scholar.

96 Case C–260/89, ERT v DEP [1991] ECR I–2925; Case C–71/02, Karner v Troostwijk [2004] ECR I–3025.

97 Most recently, Case C–157/02, Rieser Internationale Transport v Asfinag [2004] ECR I–1477.

98 A draft explanatory memorandum drawn up by the Praesidium to the Charter sets out which provisions these are: Text of the Explanations relating to the Complete Text of the Charter CHARTE 4473/00.

99 Chalmers, D European Union Law: Text and Materials (Cambridge, Cambridge University Press, 2006) 246–53Google Scholar.

100 On this see Schmid, CPatterns of Legislative and Adjudicative Integration of Private Law’ (2002) 8 CJEL 415 Google Scholar; Collins, HHarmonisation of European Contract Law: Citizenship, Diversity and Effectiveness’ (2005) 7 CYELS 81, 91–3Google Scholar.

101 Case C–198/01, Consorzio Industrie Fiammiferi (CIF) v Autorità Garante della Concorrenza e del Mercato [2003] ECR I–8005. By contrast, national administrations are liable not merely where they compel undertakings to engage in certain practices, but also where they facilitate these practices or reinforce their effects: Case C–35/99, Arduino [2002] ECR I–1529.

102 On this last point see Liebman, J and Sabel, CA Public Laboratory Dewey Barely Imagined: The Emerging Model of School Governance and Legal Reform’ (2003) 23 NYU Journal of Law and Social Change 183 Google Scholar.

103 Human Rights Act 1998 (UK) s 6(3)(b) and (5).

104 Cantlow v Wallbank [2004] 1 AC 546, 555.

105 Schepel, H The Constitution of Private Governance (Oxford, Hart Publishing, 2005) 3 Google Scholar.

106 European Parliament and Council, above n 51.

107 Case C–196/99P, Aristrain v Commission [2003] ECR I–11005.

108 Joined Cases C–189/02P, C–202/02P, C–205/02P–C–208/02P and C–213/02P, Dansk Rørindustri A/S v Commission [2005] ECR I–5425.

109 Case C–294/98P, Metsä-Serla v Commission [2000] ECR I–10065.

110 Consider the untumbling of consequences from the Bosman case when the more egregious elements of UEFA’s regulations were considered: Antonioni, P and Cobbin, JThe Bosman Ruling and the Emergence of a Single Market in Soccer Talent’ (2000) 9 European Journal of Law & Economics 157 CrossRefGoogle Scholar.

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112 In the case of the Danish Ombudsman, there is limited provision for her to consider acts of private parties where these are governed by various elements of Danish administrative law: The Ombudsman Act No 473 of 12 June 1996, Art 7(4).

113 Case C–198/01, Consorzio Industrie Fiammiferi (CIF) v Autorità Garante della Concorrenza e del Mercato [2003] ECR I–8005.

114 A summary of the viewpoints, particularly in the post–1945 period, can be found in Harding, C and Joshua, J Regulating Cartels in Europe: A Study of Legal Control of Corporate Delinquency (Oxford, Oxford University Press, 2003) 84–88Google Scholar.

115 Council Regulation No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ 2003 L 1/1. It is not the place of this paper to provide a detailed analysis of this phenomenon, which has been considered carefully elsewhere.

116 The allocation of duties has been set out most explicitly in Commission, Notice on cooperation within the Network of Competition Authorities, OJ 2004 C 101/43. On this point see para 6.

117 Ibid, para 8.

118 Ibid, para 12.

119 Ibid, paras 14 and 15.

120 Council, above n 115, at Art 11–15; Commission, above n 116, at paras 16–30.

121 Council, above n 115, at Art 11(3).

122 Ibid, Art 16; Commission, above n 116, at paras 43–50.

123 Commission, above n 116, at para 50.

124 Case C–260/89, ERT v DEP [1991] ECR I–2925.

125 With the non-ratification of the Constitutional Treaty, the formal legal status is still not completely clear. Institutional practice suggests that, at the very least, it provides an authoritative statement of the material content of the doctrine of fundamental rights in EC law. On the practice see Chalmers, D, above n 99, at 258–61.

126 Commission Communication—Compliance with the Charter of Fundamental Rights in Commission legislative proposals—Methodology for systematic and rigorous monitoring, COM(2005)172. For analysis see Toner, HImpact Assessments and Fundamental Rights Protection in EU Law’ (2006) 31 ELRev 316 Google Scholar.

127 Commission, Communication on the Application of the Charter of Fundamental Rights of the European Union, SEC(2001)380/3.

128 Commission, Communication on impact assessment, COM(2002)276.

129 Habermas, J The Structural Transformation of the Public Sphere: an Inquiry into a Category of Bourgeois Society (Cambridge, Polity, 1992) Ch 1–3Google Scholar.

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