Functional Participation in EU Delegated Regulation: Lessons from the United States at the EU's "Constitutional Moment"

Introduction

"Delegated regulation," "delegated legislation," "administrative rulemaking," or "regulatory implementation" are well-known phenomena in modern democracies. Given the complexity of contemporary societies and the broad range of issues (often of a technical nature) in which the state intervenes, regulation cannot entirely be assured by normal legislative procedure, as this is too cumbersome, not flexible enough to adapt to rapidly changing conditions, and often not able to integrate the necessary technical expertise. Legislation will, therefore, delegate part of the regulatory process to less cumbersome bodies. Yet while delegated regulation is a general practice, and while its necessity is generally acknowledged, it has not been an easy task to make it fit with the dominant understanding of democracy in which parliament would adopt all measures of a generally binding nature, whereas a "neutral bureaucracy" would ensure the application of the general rule to the specific case.

There are considerable differences in the way the United States and the European Union (EU) deal with delegated regulation and how they conceptualize the legitimacy of such regulatory procedures beyond the normal legislative road. In the United States, delegated regulation is the resort of independent regulatory agencies, and the legitimacy of such administrative rulemaking has been thought of mainly in terms of legislative mandate, due process, and participatory rights guaranteed by judicial review. In the EU, delegated regulation is mainly adopted through the so-called comitology procedures, where regulatory powers are not delegated to independent agencies, but are exercised by the European Commission¹ in interaction with a comitology committee that is composed of representatives from the national administrations, with, in certain cases, the final option that the Council may decide the issue.² Comitology has raised questions from a democratic point of view, in particular because it takes part of the regulatory process out of the hands of the European Parliament. Yet, in contrast to their place in the United States, the ideas of participatory rights, due process, and judicial review have not found a prominent place in European political and institutional discourse regarding the legitimacy of comitology and delegated regulation. Rather, it is argued that the legitimacy of European delegated regulation resides in the fact that indirect, territorial representation by way of Member States' representatives in the comitology committee, and the Council, could compensate for the lack of parliamentary involvement. However, participatory processes for civil society organizations, stakeholders, or interest groups can and, to a certain extent, already do play a role in EU delegated regulation. Moreover, in the context of the reforms introduced by the Constitutional Treaty (still to be ratified), such functional participation³ - combined with judicial review-may become more important in guaranteeing the legitimacy of delegated regulation.

This article is divided into four parts. In the first section, I will show that there is a gap between the discourse on the democratic (or undemocratic) nature of comitology and the more recent European institutional discourse on the relevance of civil-society participation in European policymaking. In the second section, I will analyze how-despite the lack of attention in institutional and academic discourse on this issue-in some cases civil-society participation has been institutionalized in delegated regulation, and will argue that this may function as an additional source of legitimacy. In the third section, I will analyze whether, according to the case law of the European Court of Justice (ECJ), there is a place for judicial review ensuring such functional participation. Finally, in section four, I will describe how the current constitutional debate may change the picture of delegated regulation. I will argue that, if the proposals made by the Constitutional Treaty are implemented, there may be a further increasing role for functional participation as an additional source of legitimacy in delegated regulation, including a desirable, stronger judicial review by the Court on such participation, which could bring the EU model of delegated regulation closer to the U.S. version.

I. Comitology and Civil-Society Participation: Two Separate Discourses

The legitimacy of comitology was initially questioned by the European Parliament, which saw itself...