EU Digital Regulation: A Constitutional and Administrative Law Transition?

With the rise of the digital era and the increasing technical complexity of regulated sectors, the European Union legislative framework has been changing. More frequently, EU institutions and Member-States have been relying on private actors to develop soft law and regulatory instruments, such as harmonized standards, technical guidelines and rules of conduct. This regulatory technique promotes efficiency and draws on the technical expertise of private entities, however, it raises pressing questions regarding EU constitutional and administrative principles.

During one of our PEARL Talks, we had the opportunity to discuss Annalisa Volpato’s “The publicity of EU law and the privatization of EU digital regulation”, an article which analyses these issues.

When regulatory powers are delegated to private entities, such as standardization organizations, the development of technical standards becomes both a professional and commercial activity. Consequently, these technical standards are usually protected by copyright and only accessible through the payment of a royalty fee. According to Annalisa Volpato, when such regulatory instruments produce binding legal effects (for example, by being incorporated in EU legislation through the referral method), principles such as the publicity of EU law, legal certainty and the democratic principle, which are concrete expressions of the rule of law principle under article 2 TEU, are at stake.

The principles of publicity and legal certainty require transparency: the law should be easily accessible for an average citizen, in order for him to be able to regulate his behavior and predict, with a certain degree of accuracy, the legal consequences of said behavior. Besides, the democratic principle requires that legislative activity is easily scrutinized by the public, ensuring accountability of the legislator.

Building on the author’s arguments, the main pressing question is: how can we ensure these principles are being safeguarded when soft law and regulatory standards are protected by copyright and not free for public access?

Through the lens of a young legal researcher, this article prompts a broader question: is digital regulation marking a constitutional and administrative transition where these principles might have to bend towards a more efficient and technically accurate regulation?

By: Sara Pinto

This blogpost is part of the DigiForce programme, funded by the European Union under the project 101240597.