Judicial review of harmonized standards: Changing the paradigms of legality and legitimacy of private rulemaking under EU law

Abstract

Harmonized Standards (“HSs”) have been essential to the functioning of the internal market and they increasingly substitute legislation in achieving EU policy objectives, such as establishing the Digital Single Market. This has prompted a “juridification” of the standardization process, which has strengthened its legitimacy and brought HSs within the scope of EU law. The nature and legal effect of HSs remain nonetheless unclear. In light of the recent ECJ case law, this article argues that HSs must now be regarded as atypical implementing acts, imputable to the Commission and subject to a limited judicial review. The incorporation of HSs under EU law triggers a paradigm shift in their legality and legitimacy, no longer exclusively based on their voluntary, non-binding character. Holding the Commission legally accountable for HSs is essential to ensure their compatibility with EU law, and to connect another atypical implementation process to the Union legal order.