EU Soft Law Research Articles

The Pillar 2 Directive and the Qualified Domestic (Minimum) Top-up Tax Puzzle

The article argues for using a teleological interpretation of the Pillar 2 Directive to allow EU Member States to comply with Pillar 2’s soft law requirements for the qualified domestic minimum top-up tax (QDMTT) and its safe harbour (SH). This interpretation is necessary because the directive’s text is not aligned with certain requirements under Pillar 2 soft law since the directive was adopted before the Inclusive Framework issued any administrative guidance. Without the teleological interpretation, EU Member States cannot comply with the qualified domestic top-up tax (QDTT) requirements and, therefore, cannot attain its SH. This would decrease taxpayers’ legal certainty and undermine EU Member States’ fiscal interests.To pursue the argument, the article analyses Pillar 2’s soft law, i.e., the model rules, the commentary, and two sets of administrative guidance related to the QDMTT and its SH, and compares their provisions with the relevant provisions of the Pillar 2 Directive. Consequently, the study offers solutions to discrepancies between these two sets of rules and joins a broader discussion regarding the relationship between EU tax law and soft law.

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

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.

Legislating softly: The effect of preference heterogeneity on the share of EU soft-law instruments over time

This study analyses how preference heterogeneity across EU member states affects the adoption of soft-law acts over time. On the one hand, high diversity in policy preferences is expected to increase the proportion of soft-law instruments because governments are less likely to agree to binding measures. Conversely, preference heterogeneity could also decrease soft law due to the perceived threat of compliance problems. We test these competing arguments using a dataset on all EU soft-law and hard-law instruments adopted between 1967 and 2019. The results show that preference heterogeneity increases the share of soft EU instruments. However, more past heterogeneity prompts EU legislators to decrease the proportion of softer measures in areas that experience high levels of past non-compliance.

The EPPO’s legislative framework: Navigating through EU law, national law and soft law

The legal framework under which the European Public Prosecutor’s Office (EPPO) is called to operate is particularly complex, given the need for this body to exercise its functions in the legal systems of the Member States, applying both Union and national law. While this may justify the many references to national law contained in the EPPO’s founding Regulation (2017/1939), several among these references present relevant interpretative issues, and may in some cases even have a misleading effect. The article aims at showing examples of these different scenarios. It also touches briefly on the relevance of soft law in the legal framework of the EPPO.

EU Governance and Soft Law: The Bamboo and the Oak

EU Governance and Soft Law: The Bamboo and the Oak

Wolfgang Weiss, Pandemic and Administrative EU Soft Law: Persistent Challenges to the Rule of Law in the EU and Possible Solutions, „Review of European Administrative Law” 2022, vol. 15, no. 1, pp. 7-28, https://doi.org/10.7590/187479822X16484711705972

Wolfgang Weiss, Pandemic and Administrative EU Soft Law: Persistent Challenges to the Rule of Law in the EU and Possible Solutions (Pandemiczne i administracyjne unijne prawo miękkie: trwałe wyzwania dla rządów prawa w UE i możliwe rozwiązania), „Review of European Administrative Law” 2022, vol. 15, no. 1, pp. 7-28, https://doi.org/10.7590/187479822X16484711705972

Integration (of Immigrants) in the European Union: A Controversial Concept

Abstract Integration is one of the major challenges posed to the European Union by the immigration of third-country nationals. And it is even more so in view of the mass influx of displaced persons stemming from the Russian military invasion of Ukraine. This article discusses the controversial concept of (immigrant) integration underpinned by the current EU legal and policy framework. It argues that, on the one hand, the concept of integration resulting from instruments of primary and secondary EU legislation, soft law and policy is inspired by the respect for fundamental rights and prohibition of discrimination. On the other hand, it stresses that the EU action mainly aims at preserving Member States’ sovereignty over immigration. The resulting EU normative framework for integration, including the newly adopted EU Blue Card Directive and the extension of temporary protection for Ukrainian refugees, allows and encourages the strategic selection of the most socio-economically and culturally desirable immigrants.

Linking compliance and policy learning

This article analyzes the link between compliance and policy learning. It argues that member states that tend to comply with EU regulations are also more prone to learn from EU soft law instruments, such as the Open Method of Co-ordination (OMC). To empirically demonstrate this argument, the article offers evidence from two illustrative case studies, Greece and Spain, based on insights from semi-structured interviews conducted with EU and national experts. The evidence shows that in Greece, compliance is problematic and learning – via EU soft law – remains mostly blocked. In Spain, where compliance is stronger, learning is more instrumental and political in nature. By focusing on the critical period before and right after the 2008 financial crisis, the article explains the different trajectories of these two Southern European countries with respect to their EU obligations through the lens of policy learning.

Book review: EU Soft Law in the Member States: Theoretical Findings and Empirical Evidence, Edited by Mariolina Eliantonio, Emilia Korkea-aho and Oana Stefan. (Oxford: Hart Publishing, 2021)

View Book review: <i>EU Soft Law in the Member States: Theoretical Findings and Empirical Evidence</i>, Edited by Mariolina Eliantonio, Emilia Korkea-aho and Oana Stefan. (Oxford: Hart Publishing, 2021) by - Common Market Law Review

Practical Considerations on the Notion of ‘Advantage’ and the Application of Market Economy Operator Test in the Context of Financial Instruments

This article focuses on the notion of ‘advantage’, as an element necessary for a national measure to be qualified as state aid. Behaving like a private economic operator implies that the state remains profitoriented and does not grant an advantage to a recipient undertaking (i.e., no aid). In order to determine that economic transactions carried out by public bodies do not confer an advantage on the recipient, the European courts have developed, as of the mid-1980s, a test which implies the comparison between the state and a private economic operator. This article focuses on a number of key issues arising when applying the ‘market economy operator test’ (MEOT) to Member States’ (MSs’) investments, especially in the area of financial instruments, e.g., equity or quasi-equity investments, loans or guarantees. The recent EU soft law indicates the forms that the MEOT may take and clarifies the state’s role in co-investments in financial instruments, together with private investors. The existing EU case-law may be useful for subtracting some principles to assist practitioners with designing financial products in line with the MEOT and avoid the negative effects of illegal aid recovery. We conclude that more proxies may be provided via soft law by the European Commission for designing financial products under the MEOT, in an effort to increase access to finance to European companies. state aid, MEOT, private investor, financial instruments, risk finance measures

Ever more soft law? A dataset to compare binding and non-binding EU law across policy areas and over time (2004–2019)

What characterizes European Union soft law and what are its implications for the EU multilevel system? What is the proportion of hard and soft law in EU policy? Which types of soft law act are adopted in different policy sectors? This article introduces the conceptual and analytical framework that encompasses the EfSoLaw dataset and explains its methodology, advantages, and limitations. This dataset unites information on thousands of EU hard and soft law acts from seven different policy sectors, drawn from over fifteen years (2004–2019) and from various sources (EUR-Lex, DGs, agencies). We present implementation options of the dataset making it exploitable for other scholars and we propose hypotheses to explain the variation in the adoption of soft law in different policy sectors.

Pandemic and Administrative EU Soft Law: Persistent Challenges to the Rule of Law in the EU and Possible Solutions

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.

Persuasive rather than ‘binding’ EU soft law? An argumentative perspective on the European Commission’s soft law instruments in times of crisis

ABSTRACT 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.

The Legitimacy of EU Soft Law:

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

To be or not to be (legally binding)? Judicial review of EU soft law after BT and Fédération Bancaire Française

El soft law de la UE es como una criatura mitológica de la gobernanza de la UE: si un sátiro es mitad hombre y mitad cabra, así la ley blanda de la UE es mitad derecho y mitad no-derecho. Su doble naturaleza irrestricta por el procedimiento legislativo ha facilitado su proliferación, pero sigue surgiendo la controversia sobre su papel en la UE y en los Estados miembros. Dos casos recientes se suman a la saga sobre los efectos del soft law de la UE: BT contra Balgarska Narodna Banka y Fédération bancaire française contra Autorité de contrôle prudentiel et de résolution. Estas dos sentencias, fruto de dos cuestiones prejudiciales, son en cierta medida extraordinarias: el Tribunal de Justicia de la Unión Europea ha analizado por primera vez la validez de las recomendaciones y directrices de la UE, medidas de soft law de la UE por excelencia, en el contexto de las solicitudes de cuestiones prejudiciales. Pero además de sus resultados, estas decisiones también han arrojado dudas sobre los efectos del soft law de la UE. Tras exponer las conclusiones de los abogados generales y las sentencias del Tribunal de Justicia, el trabajo aborda tres cuestiones: las lagunas en el concepto de «efectos jurídicamente vinculantes» en el derecho de la UE, las orientaciones (poco claras) sobre el uso del soft law de la UE en los tribunales nacionales y la evolución de la revisión de la validez del soft law de la UE. Ser o no ser (¿jurídicamente vinculante?) Esa es la cuestión del soft law de la UE.

Conference on the Bindingness of EU Soft Law

Conference on the Bindingness of EU Soft Law

Covid-19 – the impetus for public service innovation. Advancing the shift towards social procurement

With the present and future being shaped by the Coronavirus disease and worldwide responses to it, critical insights are essential. The Covid-19 pandemic has profoundly influenced the lives of most people on the plane as well as the global market, some experts believing it has caused the worst economic decline since the Great Depression. The pandemic found States unprepared to face the challenges brought by it, it has exposed the vulnerabilities of individuals, societies and economies. A few months after the sparking of the first wave of Covid-19 it was possible to assess the earliest public intervention and to foresee how the virus is going to impact economic and social systems. Given the significant increase in public expenditure since the beginning of the pandemic, this Article will articulate and explore the role of public procurement in anticipating the risk of market failure, despite the complicated environment. Likewise, focus will be drawn upon the EU soft law instruments designed to respond to economic and public health issues, through the prism of solidarity. The Article will then focus on the analysis of the Italian response to the pandemic through public purchasing techniques.

The Elusive Legitimacy of EU Soft Law: An Analysis of Consultation and Participation in the Process of Adopting COVID-19 Soft Law in the EU.

This article takes issue with the legitimacy of EU soft law instruments issued to deal with the COVID-19 crisis. Up to August 2020, we identified a total of 197 such instruments, and analysed the procedures for their adoption. We found little evidence of parliamentary involvement or stakeholder consultation, with COVID-19 soft law replicating decision-making patterns which have been constantly criticised in the literature as illegitimate and opaque. Giving due consideration to the exceptional nature of these measures, the article suggests some quick fixes which might increase, ex post factum, the legitimacy of these instruments.

The Greek paradigm of corporate governance and board of directors

Corporate governance encompasses a multidisciplinary approach, which includes the internal and external factors that affect the interests of a company’s stakeholders. The Greek corporate governance framework of listed companies has initially been established in accordance with EU regulation and soft law recommendations, in order to enhance board accountability and transparency, empower shareholders’ activism and promote financial disclosure. In that regard, it has recently been reformed by the provisions of Law 4706/2020, aiming mainly: to empower the strategic and supervisory role of the board of directors, by introducing a clear description of the obligations of non-executive and independent non-executive directors and by including the establishment of an “adequacy (internal fit-and-proper) policy” for the appointment of board members. Accordingly, two new compulsory committees are added, the nomination and the remuneration committee, which should entirely be composed by non-executive members and are invested with an advisory role in determining the remuneration policy and proposing board candidates. Furthermore, the adoption of a Corporate Governance Code is rendered substantial for all listed companies. These provisions illustrate specifically the reform of the internal corporate governance structures, which should be implemented having regard to the general principles of transparency and proportionality

How do translators handle (near-) synonymous legal terms? A mixed-genre parallel corpus study into the variation of EU English-Polish competition law terminology

Terminological variation, i.e. synonymy at the term level, is regarded as a recurrent problem in EU law. Working with a parallel-comparable corpus of EU English-Polish legislation, soft law and judgments in the area of competition, this study explores how source-language synonymy is handled in translation across institutional genres. The findings show that synonyms may be reflected symmetrically or asymmetrically, with variation being eliminated, partly reduced, mirrored, or increased in translation. It is quite frequent for translators to introduce additional variation and cross-variation. This is affected by: genre, source and target asymmetries, complexity of a semantic field, low termness and microdiachronic shifts. The study confirms that synonymy is one of the causes of variation in translation and calls for more conceptual clarity at the drafting stage.