Regulating European Standardisation through Law : The Interplay between Harmonised European Standards and EU Law

Abstract: Standardisation is one of the oldest human activities. Industrial revolution and electro-technical advancements have further increased the importance of standardisation. Nowadays standards regulate our daily life not only through the products and services we use, but also directly as laws. In the EU, Harmonised European Standards (HESs) are used in legislation—occupying the law’s domain—but at the same time, the HESs are not produced through the same manner as laws—i.e. by democratically elected individuals. This thesis investigates the legal status of these technical rules under EU law and whether and how EU law can regulate and hold European standardisation accountable by means of judicial review. In answering these questions, I admit that there are different visions of how the HESs used in EU legislation can be seen, which influences how we regulate and hold accountable European standardisation. Notwithstanding these differences, one thing is clear: if we accept that the HESs play an important role in regulating health, safety, and the environment, and at the same time are not produced by democratically elected individuals, then the least the law can do is to regulate and ensure the legal accountability to perfect the standardisation process, to make it more accountable and ‘public-regarding.’ In exploring these issues, I propose conceiving of the EU law as a ‘gentle civiliser’ for the standardisation process. In particular, I argue that the EU economic law could be a backdoor through which constitutional principles of good governance reach and regulate the European standardisation system. To do so, the judicial review of the European standardisation system at the EU level should be a process oriented as to trigger a more inclusive, open, and transparent standardisation process; in other words, judicial review should be a catalyst for a ‘public-regarding’ standardisation.