A Hard Core Under the Soft Shell: How Binding Is Union Soft Law for Member States?

Abstract

With the proliferation of European Union soft law instruments (Oana Andreea Ştefan, European Union Soft Law: New Developments Concerning the Divide Between Legally Binding Force and Legal Effects, 75(5) Modern L. Rev., 879, 879 (2012).) since the nineties, the legal bindingness of these measures has been the subject of several studies, (Most prominently, Gustaaf M. Borchardt & Karel C. Wellens, Soft Law in European Community Law 14(5) Eur. L. Rev. (1989); Linda Senden, Soft Law in European Community Law (Hart 2004); Linda Senden, Soft Law and Its Implications for Institutional Balance in the EC, 1(2) Utrecht L. Rev.(2005); Jürgen Schwarze, Soft Law im Recht der Europäischen Union,1 EuR (2011); Anne Peters, Soft Law as a New Mode of Governance, in The Dynamics of Change in EU Governance, 21–51 (Udo Diedrichs, Wulf Reiners & Wolfgang Wessels eds, Edward Elgar 2011); Oana Andreea Ştefan, Soft Law and the Enforcement of EU Law, in The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (András Jakab & Dimitry Kochenov eds, Oxford University Press 2016).) indeed, various approaches (rationalist, constructivist, hybridity) (David M. Trubek, Patrick Cottrell & Mark Nance, ‘Soft Law’,‘Hard Law’, and European Integration: Toward a Theory of Hybridity, 02(05) Jean Monnet Working Paper (2005); Oana Andreea Ştefan, Hybridity Before the Court: A Hard Look at Soft Law in the EU Competition and State Aid Case Law, 37(1) Eur. L. Rev. 49–69 (2012).) have been deployed to define and delimit soft law from hard law, even arriving at a sophisticated taxonomy of soft and hard measures. (Fabien Terpan, Soft Law in the European Union – The Changing Nature of EU Law. Working Paper Nr. 7 Sciences Po Grenoble (Nov. 2013); Anne Peters, Typology, utility and Legitimacy of European Soft Law, in Die Herausforderung von Grenzen. Festschrift für Roland Bieber, 405–428 (Astrid Epiney, Marcel Haag & Andreas Heinemann eds., Nomos 2007); Peter Christian Müller Graf, Das Soft Law der Europäischen Organisationen: Einführung, in Das soft law der europäischen Organisationen, 146–154 (Julia Iliopoulos-Strangas & Jean-Francois Flauss eds., Nomos 2012).) While these inquiries are of fundamental importance to formulate an ontology of European soft law, national courts and authorities implementing and applying soft law are faced with the more practical problem of the bindingness of these measures in a given case. Member States are often at a loss for which measures they are expected to apply and may ʻunexpectedlyʼ find themselves bound by certain soft law measures. Since the jurisprudence of the Court of Justice of the European Union sheds some light on the legal obligations ensuing from the different types of European soft law, the present article is an attempt to categorize and determine the bindingness of such measures for national courts and authorities based on the relevant case-law of the Court.