American and European Perspectives on Private Standards in Public Law

For over a century, the U.S. and Europe have relied on private organizations to develop and maintain the vast number of technical standards essential for technological advancement, trade, and public safety in any complex, modern society. Today, the U.S. and the European Union (EU) each have a well-established policy requiring the use of private standards in government regulation. Although these policies have much in common, they differ in several key respects. One consequence of these policy differences is that the two governments often use different technical standards to regulate the same goods and processes. In the ongoing free trade negotiations, standards policy thus is viewed as a significant potential source of non-tariff barriers to trade. Some have suggested that the U.S. should modify its standards policy in certain respects in order to address this issue and facilitate a free trade agreement with the EU. This article explores the often-subtle differences in the private standardization systems and governmental standards policies in the U.S. and the EU. It argues that some of these differences reflect discretionary policy choices attributable to each government’s unique history, economic reality, and political commitments. On these issues, both governments have greater latitude to modify their approach to achieve international regulatory harmonization. On other issues, however, fundamental principles of public law constrain how these governments integrate private standards into their regulatory regimes. Any free trade agreement must respect these constraints and accommodate some necessary degree of divergence between the U.S. and EU standards policies. In addition to having immediate relevance for the trade negotiations, this article’s comparative analysis may also help to identify the possibilities and limitations of any governmental framework for public-private regulatory integration.