Tri-layered accountability in influencer marketing: the case of Spain

This paper starts from the premise that argumentation in EU (Commission) soft law instruments is essential for their effectiveness, mainly due to its function to persuade addressees as a means to enhance compliance. Notwithstanding their importance in the EU legal-political landscape, the problem is how to ensure that these instruments devoid of formal legally binding force can function as effective governance tools by convincing addressees to comply, particularly during crisis periods such as the Covid-19 crisis, when fast and effective action is urgently needed. By pointing at a number of significant legal problems and concerns deriving from the Commission’s ‘hardened’ soft law instruments, we suggest a normative approach focusing on the potential of EU soft law instruments to act as highly persuasive tools. By making the instruments’ argumentation a core concern, we examine its role as a means to improve the intrinsic quality of EU (Commission) soft law and to foster effective compliance. To this end, we propose a theoretical-analytical framework combining insights from law and argumentation theory, that puts forward an argumentative toolbox for the analysis and assessment of EU (Commission) soft law instruments. This toolbox comprises four argumentative parameters that need to be taken into account in the drafting and evaluation of EU (Commission) soft law instruments: (1) the content of the argumentation, (2) the design of the arguments pointing at persuasive suggestions for cooperation, (3) the factors influencing argumentative effectiveness, and (4) the soundness of argumentation.

New modes of governance are proliferating at all levels, most prominently in the EU. One main characteristic of new governance is adjustability and revisability in the form of soft law. The non-binding nature of soft law is said to contribute to flexibility and diversity in Member States and to secure national autonomy. However, this article argues that while soft law may not be legally binding, it nevertheless has legal effects that throw flexibility and diversity of national action into doubt. Beginning by demonstrating that soft law may have discernible effects on practices in Member States, at the same time restricting Member State choices, the article goes on to develop a categorisation of those effects and to document them in detail. These are: judicial recognition by the European courts, explicit terms of soft law instruments, which demand special types of national implementing measures, the role played by non-state actors, and hybrid forms of regulatory instruments comprising soft and hard law provisions. The analysis shows a need to add variety to existing research on EU soft law, which has traditionally focused on the role of the judiciary in giving legal effects to soft law. Instead, we should be more attentive to the other three factors when discussing soft law. Besides the more holistic approach, research should also analyse soft law in a more case-specific manner in order to fully grasp the implications of choice of soft law in a domestic legal system.

Soft Law as a New Mode of Governance: A Legal Perspective

This article takes issue with the State aid soft law and its questionable legitimacy, transparency and compatibility with the rule of law. Although critics in this regard are almost ‘traditional’, the practice of adoption of EU soft law does not imply a conclusion that something is changing in this regard. What is more, the dimensions of the current pandemic seem to emphasize them. Recognising advantages of soft law and the existence of wide discretion of the European Commission this paper looks at the current state of affairs regarding EU soft law in EU State aid regime (and briefly also other EU policies), determines the gap between EU soft law and the rule of law and presupposes solutions that would improve EU soft law’s quality in the European integration. Keywords: legitimacy; EU soft law; soft law; rule of law; democratic safeguards; COVID-19 soft law

Soft law instruments such as recommendations, guidelines or communications do not entail jurisdictional control, but produce important legal and practical effects. The literature on soft law frequently praises these instruments for enhancing governance efficiency through flexible problem solving. On the other hand critiques stress a lack of legitimacy as soft law is typically adopted outside the legislative arena. Yet, relatively little is known about concrete effects it takes at the national level. On the basis of case study evidence from Germany, this chapter shows that despite being non-binding, EU soft law is frequently implemented. Comparing implementation of nine soft law instruments in financial market regulation, social and environmental policy the chapter highlights that actors implement soft EU instruments either in the form of soft or hard law. Efficiency gains are frequently a main driver of implementation, while legitimacy and accountability become a concern where responsibilities are blurred during implementation.

EU Tax Law - as other legal systems - relies on formal law established or recognized by the competent governmental authority. But shouldn't there also be 'good law' in order to be obeyed? That goes as well for its provisions making up EU Hard Law as for its nonbinding legal acts of the Commission making up EU Soft Law. In our recent book on EU Tax Law, we told - as most other tax commentators do - extensively the hard tax law story of EU Treaties, EU-legislation, non-written EU tax principles and ECJ fiscal case law. Accordingly, we used to touch only briefly on the other legal source of EU Soft Law - mainly Commission tax initiatives - arguing that they do not deserve the same attention and recognition for lack of a legally binding power, resulting in a low degree of tax efficiency and failure of harmonious connection with the EU-process of tax cooperation. Today we see a distinctive internal shift in the legal premises and status of EU Soft Tax Law. The shift is reflected in recognized stepped-up levels of effectiveness and wider scope of the steering functions of the Commission effectively of raising the legal process of European tax cooperation.

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.

EU Soft Law in the EU Legal Order: A Literature Review

The European Union adopted soft law as its most promising regulatory tool at the Lisbon Summit in March 2000. Analysis of soft law has been inconclusive to date, divided between those who value it in an increasingly culturally diverse Europe and those who caution that excessive use of soft law could weaken the legal tradition which has underpinned the EU to date. Most agree it is too soon to fully assess the effectiveness of soft law in implementing social policy. The article aims to address this methodological impasse by examining an example of soft law that has been in operation for fourteen years: the ‘Europeanisation’ of Associative States. Contradictory, but illuminative results are presented which, it is argued, highlight the internal contradictions inherent in the nature of current EU soft law. On the one hand the article focuses firstly on Hungary's national–level social dialogue where fourteen years of soft law are found to have been powerful enough to guide the ‘Europeanisation’ of social policy in an administration outside the EU's jurisdiction. On the other hand, the article reviews policy in training and poverty and social exclusion where it argues that ‘Europeanisation’ has been fragile. The article concludes that EU soft law is effective in those cases where it is slightly firmer in nature. It is argued that soft law needs to evolve into a harder legal mechanism. Despite the warm welcome which soft law received at Lisbon, the EU has begun to recognise this weakness and aims to engineer a more robust species of soft law.

The paper analyses soft law as a mode of EU governance. European soft law can be qualified as a relatively ‘new’ mode, notably due to its dramatic proliferation and the increasing involvement of private actors. The concept of ‘soft law’ is viable on the premiss that normativity may be graduated (‘the continuum view’). Soft law deploys specific legal effects apart from outright legal bindingness, and not merely political or otherwise factual effects. The legal effects of European soft law flow from the Member States’ general duty to cooperate (Art. 4(2) TEU). The paper then traces the emergence of EU soft law and establishes a typology distinguishing between institutional soft law, member States’ European soft law, and private self- and co-regulation (including technical and financial standard-setting). Next, some factors explaining the emergence of soft law as a new mode of governance are sought, and some undeclared policy goals such as competence creep, and the alleviation of private actors’ lack of formal law-making capacity, are highlighted. The relation between European soft and hard law is analysed in terms of soft law’s ‘pre-law’, ‘law-plus’, and ‘para-law’ functions. Finally, European soft law is evaluated along the parameters of effectiveness and legitimacy; and its overall significance for the European integration process is assessed.

Facebook, Instagram, TikTok - any social media is full of advertising. The history of celebrity endorsement of products is nothing really new, but Internet brought it to the extreme level. A wide range of global population has been relying on influencers for all sorts of information. It creates the great responsibility as influencer marketing may lead to faulty advertising and misinformation, especially among minors and people with low digital literacy. Until recently influencers and their activities were not the subject of particular legal interest. These issues are currently addressed through tailored legislation neither at EU level nor in national regulations. To compensate for it, the last few years have seen a proliferation of soft law (regulatory guidelines) and industry self-regulatory measures to provide greater transparency. But is soft law combined with case law enough to provide the desired standard of consumer protection in the whole Single Market? Since platforms and technologies change at fast pace are we able to create a regulation that will not lag behind the development of the market? The digital environment in which influencer marketing takes place, which can hardly be confined to one country, creates additional challenges for legislators. The objective of the article is twofold: firstly, to present the existing legal framework at the EU and Polish levels; and secondly, to identify potential weaknesses in these regulations in the context of influencer marketing.

This article takes the proliferation of EU soft law instruments in the management of the COVID-19 pandemic as an opportunity to analyse their effects and challenges to democracy and rule of law in the EU posed by the use of EU soft law in the implementation of EU law. A proposal will be made for a general legal framework on the adoption of administrative EU soft law in order to address them. Enhancing the legitimacy of EU governance requires a general legal framework that introduces minimum procedural, transparency and participatory safeguards and foresees looser rules for urgent soft measures. The article thus makes an original contribution by reconsidering the debate about EU soft law in the context of COVID-19 soft law with a view to its salience for domestic implementation of EU law and by developing core elements of a general legal framework.

Soft law issued by the European Commission plays an important role in the area of EU competition law. Focusing on the legal effect of competition soft law as applied by Germany's national competition authority, the Bundeskartellamt, this contribution analyses how the authority pursues interpretational and decisional objectives through references to competition soft law. This contribution quantifies the references made to soft law and categorises these references on the basis of the involvement of other sources of law in an individual reference. It is shown that the Bundeskartellamt is comfortable making reference to competition soft law as the sole legal basis for certain parts of many decisions, ascribing to competition soft law a strong legal effect in several instances.

This article discusses the Grimaldi obligation, that is, the duty of national courts to take European soft law into account when deciding cases, in view of the evidence from the longitudinal study of the Grimaldi jurisprudence, it is suggested that although the doctrine has not changed, the world around it has. While the ECJ has not reversed the precedent set by Grimaldi, nearly three decadades of EU soft law making have eroded the foundations of the doctrine to the extent that the obligation has become heavily nuanced. First, to the extent that the soft law measure is issued by an EU institution and its development is foreseen in primary or secondary law, Member State courts can depart from the interpretation offerd in the measure only if they can provide detailed and substantively valid reasons why it should not apply. Secondly, if the soft law instrument is free-standing, that I derived from primary or secondary law, or where non-binding guidance is given by actors other than the institutions, the Member State court has more leeway to decide whether or not to take non-binding guidance into account. The third noteworthy feature that emerges from the analysed jurisprudence is that Member State courts have become more proactive in challenging EU soft law, and, insofar as it is an act of the EU institution, the Court is cautiously accepting validity challenges posed by Member State courts in the preliminary reference procedure. This suggests that if a new or revised Grimaldi is to be found, it should be through judicial dialogue.

The article is devoted to the soft law concept and its evolution in the modern world. Soft law reduces the degree of uncertainty in the law and at times is the only alternative to abandoning any regulation of people’s interactions. It is pointed out that the norms addressed to particular agents may have different degrees of being mandatory. If we depict the whole system of rules as a continuum and place each rule along it according to how binding it is, then soft law would be placed in the “grey zone” between law and non-law. It is not yet the law, but it is not merely politics, morality, traditions and the like. It is something intermediate between the two. Soft law instruments create uniform “rules of the game” for actors in cross-border relations. The purpose of the soft law concept is to decrease the “zones of uncertainty” in the law. Because of this, soft law, whether it is employed in global law-making systems or not, may be viewed as a source of effective instruments that decrease the level of uncertainty within systems of law. At the same time, the alternative to soft law is not hard law but the absence of any purposeful regulation at all. It is my considered opinion that in the prevailing condition of fragmentation in the official sources of international law, where common approaches are not supported by universal acts and are more typically regulated by bilateral agreements, soft law can offer all interested parties steady, uniform guidelines arrived at through compromise for law-abiding and mutually beneficial behaviour, thus increasing the stability and certainty of cross-border interactions.