RICERCA ITALIANA     

Research program

THE RELATIONSHIP BETWEEN EUROPEAN ADMINISTRATIVE LAW AND GLOBAL ADMINISTRATIVE LAW

University Co-ordinator

Università degli Studi di SIENA - DIRITTO PUBBLICO - ()

Research Unit Leader

Bernardo Giorgio Mattarella

Description

The enquiry aims at analyzing the interaction of European administrative law with global private regulation, through the exam of three sectors (but others might be chosen later on, if useful for the research): technical standards, accounting, forestry certification.
A European system for technical standardization has been established a long time ago. The purpose of standardization is diminishing trade barriers: common standards are necessary in the construction of the single market . In order to achieve this, since 1985 CE adopted a peculiar strategy, within which private actors play a central role. The core principles of European standardization can be found in Council Resolution of 7 May 1985 on a new approach to technical harmonization and standards.
The ‘new strategy’ draws on the distinction between essential safety requirements and technical production specifications: legislative harmonisation is limited to essential safety requirements, while the task of drawing up technical production specifications is entrusted to organizations competent in industrial standardization (products manufactured in conformity with harmonized standards are presumed to conform to the essential requirements established by the Directive). The European Standards Organizations are the European Committee for Standardization (CEN), the European Committee for Electrotechnical Standardization (CENELEC) and the European Telecommunications Standards Institute (ETSI). The first two are non governmental organizations, based in Bruxelles and ruled by the Belgian private law; members of the two are the national standards bodies of the EU countries (between which the Italian Ente Nazionale per l’Unificazione (UNI)). A distinctive feature of this model is the continuous and stable collaboration of private parties in a public function, which is the result of the decision of charging the standardizing organization with the task of drawing up technical production specifications.
At the global level, two very well established private regulators are in charge with standardization: the International Organization for Standardization (ISO) and the International Electro-technical Commission (IEC), which have been developing technical standards since the beginning of the 70s. Besides, the Agreement on Technical Barriers to Trade (TBT), one of the World Trade Organization (WTO) agreements, requires WTO member States to use international standards as a basis for their technical regulations, and establishes ISO and IEC as the relevant standard setters.
European law needs to take into account WTO law, and because of the latter, also of private global regulatory regimes concerning technical standardization. But how does this interaction works? Does European standards conform to the global law, or are they in competition? Global regulation an European one are influencing each other?
In the accountancy sector, the purpose of coordinating European law and global regulation is much more apparent. The International Accounting Standards Board (IASB) is a private global regulator establishing standards and guidelines for accounting. Starting with the Communication of the Commission Accounting Harmonisation: A New Strategy vis à vis International Harmonisation, in 1995, UE strategy in the accounting sector has changed steadily: from an approach based on the establishment of binding rules, carried on through EU’s bodies, EU has moved to an approach aimed at incorporating internationally recognized accounting standards and principles, established by the IASB. This choice originated from the observance of the too rapid obsolescence of public rules (due to the long approval procedure), contrasted to the greater flexibility of standards produced by private regulators.
With Regulation Ce n. 1606/2002 (so called Ias Regulation), a systematic incorporation of standards established by the Iasb was planned (Ias/Ifrs): in this way, global accounting standards, first established by private entities, gain binding force through European recognition. Nevertheless, Regulation Ce n. 1606/2002 does not call for a simple incorporation of internationally recognized accounting standards, but requires an extremely complex procedure. According to Ias Regulation, when deciding on the applicability of Ias/Ifrs, the European Commission must be assisted by two committees, which evaluate if the international standards are conducive to the European public good, and meet the criteria of understandability, relevance, reliability and comparability required of the financial information: the Accounting Regulatory Committee (Arc), composed of representatives of the Member States (the political level of the endorsement process), and the European Financial Reporting Advisory Group (Efrag), which provides technical support and expertise. Finally, the Committee of European Securities Regulators (Cesr) is charged on assisting the Commission in implementing the Ias.
Therefore, the new European strategy for the accountancy sector outlines a hybrid public-private model, the consequences of which still have to be explored. How does the public regulator control the private one? Is it a purely ex post control, or does the public regulator try to play a more active role in the international standard setting process?
The Forest Stewardship Council (FSC) is a global private regulator for forestry certification. Established in 1993 by a group of NGOS (between which the World Wildlife Found (WWF)), and some individual forestry professionals, the FSC sets international standards for responsible forest management and accredits independent third party organizations who can certify forest managers and forest product producers to FSC standards. During 1998 and 1999, the Pan-European Forest Certification Council (PEFC) was formed. There are important differences between the European private regulator, and the global one: while the FSC aims at promulgating a single overall standard to be adapted to variable local conditions, the PEFC wants to provide a common framework for the mutual recognition of nationally based certification programmes. Besides, there seems to be an involvement of government agencies in the PEFC activity (see E.Meidinger, The Administrative Law of Global Private Public Regulation: the Case of Forestry, in European Journal of International Law, 2006, Vol. 17, No. 1, pp. 55-56). Also in the sector of forestry certification, thus, an enquiry aiming at analysing which kind of interaction takes place between global and European regulation proves useful for scientific research.