Rule of Law and Participation: A Normative Analysis of Internationalised Rulemaking as Composite Procedures?

Procedural standards of participation have the capacity to structure and constrain the exercise of authority. Focusing on the way decisions are formed, this article argues that the depletion of such standards in processes of reception of trans- and international decisions within the EU potentially leads to situations of unrestrained authority and can constitute a challenge to the rule of law. It sets out the basis for a conceptual and normative analysis underpinning the argument that procedural standards of participation can be considered part of the rule of law.
The depletion of such standards is one facet of a broader problem. Intertwined decision-making procedures that cut across EU and international levels of governance challenge the ability of law to limit executive action. The challenges that internationalized rulemaking procedures pose to law can only be apprehended if they are seen in their entirety as segments of a broader regulatory cycle. On this basis, this article proposes a re-conceptualization of the decision-making procedures that operate the substantive coordination between different sites of governance. Having a EU focus, the article contributes to analyzing the challenges and possibilities of the rule of law in the current realities of diffusion of power resulting from internationalization.