The Constitutional Fit of European Standardization Put to the Test

Abstract

The adoption of harmonized standards (HSs) within the framework of the ‘New Approach’ is a long-standing phenomenon of the European decision-making process. Yet, an important question remains how their use actually fits in with the Union’s legal system, in particular in the light of the changes Regulation 1025/2012 has brought as well as the hierarchy of norms introduced by the Treaty of Lisbon and the recent case law of the European Court of Justice. In analysing this question, this article concludes that given that HSs are gaining an increasingly EU public law nature and are akin to the Commission’s exercise of implementing powers, it can be doubted whether the constitutional safeguards the Regulation provides are sufficient. The ‘constitutional fit’ of European standardization is in need of improvement as the limited constitutional safeguards for this type of delegation of powers are in sharp contrast with those that have been put into place in the Treaties for the Commission’s own exercise of delegated power.