Soft Law in the Field of EU Competition Policy

Abstract

This paper examines the use of soft law in the field of EU competition policy. It recognises the trend towards softer forms of governance and that soft law plays an important role as an information source for individuals and undertakings in the market. The paper investigates the pros and contras of the ever increasingly use of soft law. In addition a classification of the instruments is attempted. The focus is mainly on the European Commission’s use of soft law since it is the major developer and user of these measures. The paper begins with a discussion of the concept of soft law. It also examines the practical and legal effects of these quasi-legal measures. Furthermore the paper shows how individuals and undertakings comply with soft law even though they are not obligated to do so as a matter of law. The paper also discusses soft law’s contribution to the development of legislation. It recognises that these measures play an important role in the development of new competition policy. Furthermore the paper shows that the instances of discretion inherent in the legal framework makes the Commission’s use of soft law possible as well as desirable. It concludes by pointing out that despite its negative features soft law will play an even more central role in the future. Soft law aids the understanding of the complex antitrust rules developed through case law and individual decisions by the European Commission. It makes the system more transparent. The soft law approach combines a flexible regulatory system with enhanced legal certainty.