The Private Administrative Law of Technical Standardization

The nature and place of technical standards has remained an enigma for EU law and legal thought, despite their ubiquitous part and growing importance in market-building processes within and beyond Europe. The significance and intractability of this enigma has been heightened by the landmark Fra.bo (2012) and James Elliot (2016) judgments of the ECJ. These judgments have prompted contradictory positions regarding the publicity and justiciability of technical standards among European legal scholarship and even between the European Commission and the European Parliament. The enigma and these contradictory positions have recently reached the ECJ again through the Stichting Rookpreventie case currently under review by its Grand Chamber. Drawing upon a reconstructive analysis of these and other relevant legal sources concerning technical standardization in Europe, this paper surmounts these seeming contradictions by advancing a new account of these legal developments. Contrary to the mainstream positions nowadays in tension, the article argues that these judgments have reaffirmed the New Approach and the distinctive place of technical standardization organizations in the European legal order while avoiding dysfunctional modes of judicialization. It has done so by acknowledging the techno-political character of technical standards and aptly delineating institutional competences between the government and the judiciary throughout technical standardization processes. To guide future legal thinking and reasoning on these processes, the paper recasts these legal developments through the idea of a ‘private administrative law’ as signifying the way that EU Law has transformed the nature and place of technical standardization in the internal market and as an eventual means for the global reach of EU law.