Rule of Law and Participation: A Normative Analysis of Internationalised Administrative Procedures

Procedural standards of participation have the capacity to structure and constrain the
exercise of authority. Focusing on the way decisions are formed, this paper 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. The first part of the paper identifies the
conditions under which this may occur. 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.
As such, the depletion of procedural standards emerges as one facet of a broader
problem – the ability of public law to structure discretion and constrain the exercise of
authority that results from internationalised procedures. These intertwined decisionmaking
procedures cutting across different levels of governance challenge law’s ability
to limit executive action and, hence, the rule of law premise that the exercise of public
authority ought to be limited by law. In this way, and despite its EU focus, the paper
contributes to analysing the challenges and possibilities of the rule of law in the current
realities of diffusion of power resulting from internationalisation. This perspective requires a re-conceptualisation of the decision-making procedures that
operate the substantive coordination between the sites of governance involved. The
processes through which inter- and transnational rules and decisions are received in EU
law are only segments of a broader regulatory cycle initiated by inter- and transnational
bodies – of which the receiving authorities are either members, observers, or, otherwise
active collaborating parties. Such processes can neither be fully grasped by focusing only
on the segments of decision-making developed within each legal system, nor can the
challenges they pose to law be apprehended from this perspective. They ought to be seen
in their entirety as segments of a broader regulatory cycle. On this basis, the second part
of the paper proposes two possible routes to rethink internationalised procedures