The place of the OMC in the system of EU competences and sources of law

Abstract

It is often said that the Open Method of Coordination (OMC) is a form of soft law and that it takes place outside the competences of the EU. This Article critically examines both these statements. It argues that OMC processes must, under the principle of conferral, be within the limits of the competences attributed to the EU by the Treaties, and that this is also the case in practice. It further argues that, whereas the OMC does produce soft law instruments in the field of employment, most of the other OMC processes produce neither hard nor soft law but policy documents which may or may not be taken into account by the Member States in the respective policy domains. The Article concludes that the OMC is a form of EU-level cooperation that operates within a legal framework defined by EU competences and the EU institutional balance, but that mostly does not use legal tools, either of the hard or soft variety, in its policy output.