Judicial Review and the New Modes of Governance: The Case of Co- and Self-Regulation

The 2003 Interinstitutional Agreement on Better Law-Making between the EP, Council and Commission provides for the ‘need to use, in suitable cases or where the Treaty does not specifically require the use of a legal instrument, alternative regulation mechanisms’. Such mechanisms include co- and self-regulation, i.e. administrative processes which involve the participation of private parties, such as the social partners or the standardization bodies, as decision-makers. While the involvement of private parties in EU administrative governance has the clear advantage of delivering policies which are based on the expertise of the regulatees themselves, private-party rule-making raises significant concerns in terms of its legitimacy. In particular, not only can the involvement of private parties in EU decision-making be questioned from the perspective of compliance with the Meroni doctrine, but also from that of the existence of an adequate set of control mechanisms to review the legality of the actions taken by private parties as administrative rule-makers. This paper aims at identifying the gaps of judicial protection which exist in co- and self-regulation mechanisms. After an introduction to the issue of co- and self-regulation and the rationale for the involvement of private parties in EU administrative governance, the mechanisms of judicial supervision will be reviewed in order to establish whether the current level of judicial control complies with the principle of effective judicial protection. Finally, it will be considered whether participation and representation mechanisms could be seen as adequate alternatives to a possible lack of effective judicial control.