European integration through standardization: How judicial review is breaking down the club house of private standardization bodies

Standardization is slowly but slowly but surely marching forward into the public domain. The revision of the European standardization package is stimulating this development because the use of private standards in public policy is supposed to spur technological innovation and reduce barriers to trade. This may explain why the Commission wants to speed up the standardization process. In the meanwhile, however, a number of important legal issues remain unaddressed in recent European policy and legislation on standardization, such as: how far "delegation" of public rulemaking to private standardization bodies may go and if and when this could come into conflict with the alleged voluntary and self-regulatory nature of these standards; whether copyrights that rest on standards limit the access to pieces of legislation that refer to standards in an unlawful way, and who is responsible for the content of the standards: the state or the market? Our hypothesis is that the "club mentality" of standards makers has, until recently, worked as an effective shield against market dynamics and judicial review. However, under the influence of recent case law from the ECJ and national highest courts, the "club house" of the standards bodies is starting to show cracks.