Rethinking Private Regulation in the European Regulatory Space

The European regulatory space is changing. The role of private regulation is increasing more as a complement of public regulation than as an alternative to it. The emergence of new regulatory models coordinating public and private regulators has characterized the last decade. They reflect the crisis of the regulatory state but at the same time pose serious questions to the legitimacy and accountability of private regulators. The paper distinguishes five different models: public regulation, co-regulation, delegated private regulation, ex post recognizedprivate regulation and private regulation. Within these models it concentrates on the differences between pure private regulation and modes through which public and private actors coordinate to perform regulatory activity. The paper addresses the questions posed by these changes in terms of rule-making and monitoring. It focuses particularly on three dimensions: the alternative between monopolistic private regulators and plurality of regulators, the conflict of interest and the liability regimes. It underlines on the one hand the opportunity for new rules and on the other hand the necessity to distinguish between private regulators operating in coordination with public institutions and those whose regulatory power is embedded in freedom of contract. These two typologies present different issues. Different modes of control should be used to correlate the new powers with new liabilities. The legitimacy of private regulators and their contribution to a democratic regulatory regime will depend on the ability of legislators and private parties to device adequate European and transnational rules and institutions. This is the main challenge ahead.