Taking Soft Law Into Account... of Course! But What Does That Concretely Mean?

Abstract

This study attempts to verify what concretely the Grimaldi doctrine entails for national courts. According to this landmark decision, a national court is bound to take European soft law into account when adjudicating disputes. Although more than 30 years have passed since its adoption, its role in the domestic legal order still appears ambiguous. In the hope of highlighting what the Court had meant to state, this paper intends to grasp the real implications of this leading case. First, in order to outline the scope of the duty enshrined by the Court, some aspects will be examined, such as the addressees of the doctrine, the types of EU soft law measures involved, and the legal basis of this obligation. Secondly, while bearing in mind what some have argued, namely that Grimaldi imposes either a duty of consistent interpretation or a duty of effort, this article intends to suggest a third way, which is the 'soft duty to apply' EU soft law. This obligation, of course, is not to be understood in the narrow sense of the word and varies in intensity depending on the situations in which national courts find themselves. In this respect, it will be appropriate to explore what implications these measures entail for domestic courts and what the latter should concretely do when dealing with EU soft law instruments. Finally, this study identifies the possible consequences of the 'soft duty to apply' EU soft law in the framework of the dialogue between courts by focusing on the dynamics governing the procedure under Article 267 TFEU and accordingly suggesting the applicability of Foto-Frost and CILFIT doctrines to proceedings where a source of European soft law is at stake.