Rationality within REACH? On Functional Differentiation as the Structural Foundation of Legitimacy in European Chemicals Regulation

This paper analyses the potential legitimacy basis of REACH, the new regulatory system for the EC chemicals market. It is argued that three different potential sources of legitmacy exists: i) the quasi-democratic process within which it was established; ii) proceduralisation; and iii) through an institutional design which is aimed at fostering deliberation. This threefold legitimacy basis reflects the hybrid nature of the regulatory structure of REACH. It is, however, also argued that the underlining feature of all three forms is that they are based on or conditioned by a high level of functional differentiation. Hence, it is argued that the prevalence of functional differentiation serves as a structural condition for the construction of an adequate legitimacy basis for transnational regulatory structures. In addition, functional differentiation must be regarded as a source of legitimacy in its own right. An adequate model of transnational governing and governance in the European context must therefore systematically confront the reality and necessity of functional differentiation.