, Volume 35, Issue 2, pp 187-210,
Open Access This content is freely available online to anyone, anywhere at any time.
Date: 09 Jun 2011

European integration assessed in the light of the ‘rules vs. standards debate’

Abstract

The interplay of various legal systems in the European Union (EU) has long triggered a debate on the tension between uniformity and diversity of Member States’ (MS) laws. This debate takes place among European legal scholars and is also paralleled by economic scholars, e.g. in the ambit of the ‘theory of federalism’. This paper takes an innovative perspective on the discrepancy between ‘centralized’ and ‘decentralized’ law-making in the EU by assessing it with the help of the rules versus standards debate. When should the EU legislator grant the national legislator leeway in the formulation of new laws and when should all be fixed ex ante at European level? The literature on the ‘optimal shape of legal norms’ shall be revisited in the light of law-making in the EU, centrally dealing with the question how much discretion shall be given to the national legislator; and under which circumstances. This paper enhances the established decisive factors for the choice of a rule or a standard in a national setting (complexity, volatility, judges’ specialization and frequency of application) by two new crucial factors (switching costs and the benefit of uniformity in terms of information costs) in order to assess law-making policies at EU level.