Legal Regulation of Expertise in Administrative Rule-Making: The European Commission's Rules in Comparative Perspective

The use of experts and their expertise for administrative rule-making is a phenomenon well-known both in the EU and the US. One major feature of the advisory system is the institutionalisation of expert groups. These are composed by academics as well as representatives of corporate or societal interests. Common challenges for the regulation of these groups center on the concepts of independence, transparency and legitimacy. The democratic legitimacy of the influential use of expert groups requires a legal order that gives answers to these problems. The paper examines expert groups in the European Union and the United States from a comparative administrative law perspective.

On the one hand, within the European Union, the legal regulation across policy areas is mainly based on the Commission’s soft law and inter-institutional agreements with the European Parliament, despite the growing impact of expert groups under the new rules on delegated legislation by the Commission. Hence, the Parliament is not directly involved in the rule-making for expert groups. On the other hand, the United States have regulated expert groups for over four decades through the Federal Advisory Committee Act, created as boundary and control instrument for Congress. On a more concrete level, the study is interested in the institutional design options available. The paper thus analyses the rules govern the composition and the work of expert groups, the legal safeguards foreseen to ensure the independence of (scientific) advice as well as the consequences for the legitimacy of the expert use in public administration.