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 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 decision-making 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