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Outsourcing Rulemaking Powers: Status and Perspectives

Name: Outsourcing Rulemaking Powers: Status and Perspectives
Start: 2022-07-06T07:00:00+02:00
End: 2022-07-06T08:30:00+02:00

Within democratic states, parliaments have always been regarded as playing a pivotal role in the creation of rules. Through its composition, the parliament is taken to represent the opinions and interests of society. However, in an increasingly globalized world, nation-states are confronted with issues that require international cooperation, expert knowledge and flexibility to resolve. Rather than taking the lead, parliaments are increasingly settling for a managerial position. They have also begun to outsource their rulemaking powers (and other constitutional responsibilities) rather than exercising them themselves. The panel wishes to offer a state of the art on this bourgeoning area of constitutional law and develop further areas of research and discussion, partly inspired by Cedric Jenart, Outsourcing Rulemaking Powers, Oxford University Press 2022. The panel forms a ‘twin-panel‘ with the ICON-S panel on the ‘Control of technical standards‘ (Mariolina Eliantonio & Marie Gérardy).

Cedric JenartOpportunities of national comparison outsourcing rulemaking powers

The first paper of the panel defends the added value of comparing various national stances on the transfer of rulemaking powers. In order to establish common constitutional principles and principles of good rulemaking on the outsourcing of rulemaking powers in contemporary democracies, substantial comparative studies of selected legal systems have been performed of Belgium, France, Germany, the UK and the United States. How well are comparative constitutional systems prepared for the outsourcing of rulemaking powers and how can we improve this from a rulemaking, adjudicatory and scholarly perspective?

Emmanuel SlautskyThreats of national comparison outsourcing rulemaking powers

The second paper is taken as a critical reflection on the pitfalls of comparing various domestic constitutional approaches to a universal topic such as outsourcing rulemaking powers. Naturally, comparative law has its general advantages and disadvantages, but definitely in a key institutional topic such as outsourcing rulemaking powers the democratic constitutional system has a major influence on the legal approaches and solutions.

Marie GérardyEU Law and outsourcing rulemaking powers via dynamic referrals

The third panel shifts the attention to outsourcing rulemaking powers on the supranational (EU) level. Under WTO law and several trade agreements, the EU public actor undertakes to base its product regulations on existing international standards. To that end, various pieces of EU law exclusively and dynamically refer to private international standards such as ISO standards. Exclusive references to ISO standards in EU law inherently are dynamic since ISO standards are updated every three to five years while keeping the same number. Once the number is anchored into a piece of legislation, it is set in stone, although ISO technical committees might substantially amend it at a later date. Against this background, this paper discusses the resulting risk of unlawful delegation of powers from the EU public actor to the ISO in light of constitutional limits and the doctrine of delegation in EU law.

Yseult MariqueN/A. Discussant.

Chair(s): Florian Becker / Cedric Jenart

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