In the management of the COVID-19 pandemic, soft law was the instrument of choice for the European Commission. This exacerbated the long-standing concerns of constitutional scholars about soft law´s challenges to fundamental principles of EU rulemaking. This blog post proposes a general legislative framework for the adoption of EU soft law that contains some basic rules to address them.
The Proliferation of EU Soft Law in Times of Crisis
The EU management of the exceptional situation caused by the COVID-19 pandemic made once more – as in previous crises – considerable use of soft law instruments with which the European Commission was able to clarify urgent questions that arose, for example, in EU competition law (see e.g. Temporary Framework in State aid; Comfort letter on companies´ cooperation to target the shortage of critical medicines), the free movement of persons (see e.g. the Guidelines on seasonal workers), or tourism or transport (see Guidelines on progressive resumption of tourism services and for health protocols in hospitality establishments). Soft law has in fact been used by the EU for decades to informally guide the application of its law by national institutions in its multi-level system. During Covid-19, the Commission issued hundreds of soft law instruments to set out emergency policies for the Member States in many policy fields.
This practice, however, aggravates the long-standing concerns about the weaknesses of EU soft law, in view of democracy and rule of law being founding values of the EU legal order (Article 2 TEU). Already after the last tremendous crisis, the financial crisis, scholars had pointed out the challenges in view of balance of powers between the EU executive and the EU legislator, the EU´s democratic values and its input legitimacy. Soft law deteriorates the legitimacy of EU governance because the enactment of soft law instruments undermines and circumvents the legal safeguards of the usual procedures for rulemaking. Legislative procedures have a higher legitimacy in terms of (at least) input and throughput legitimacy due to their institutional setting (legislative procedures take place in more or less directly elected institutions), their detailed procedures and legislative frames that must be followed, their transparency and broad participatory capacities, and their involvement of diverse institutions. Soft law shifts the balance of power in favour of the executive as Parliament is left out, and consultations with stakeholders or even Member States take place only at a rudimentary level. Such challenges become particularly relevant in times of change. The implementation of the Green Deal or the adaptation to the digitalization of the economy stipulate many regulatory issues requiring fundamentally new orientations e.g., for competition and economic policy which to clarify must be in the hands of the legislative in the usual political and legislative procedures provided for in the EU. Thus, the continuation of more informal guidance prompts a danger of becoming dependent on soft guidance. This could lead to the abnormal situation that crisis governance tools could become permanent instruments.
Proposal: A Legal Framework on EU Soft Law
These challenges to democratic legitimacy and the rule of law in the EU could be addressed by a general legal framework on the adoption of soft law by the Commission, as already proposed by Eliantonio and Stefan. My proposal here is to do this in a legislative act based on Article 298 TFEU that provides for general procedures and basic legal principles for the adoption of informal, non-binding executive acts. Besides rules for normal circumstances, specific procedures should be foreseen for soft law as crisis response to reflect the need for urgency and even greater flexibility. Such a framework would serve the right to good administration (Article 41 CFR) and the duty of transparency (Article 15 TFEU), whose basic requirements must be respected by EU institutions when also acting informally. The alternative of an Interinstitutional Agreement appears not to be a feasible instrument for addressing constitutional challenges.
Following this, I will introduce the core content of such a legislative act:
- Subsidiarity vis-à-vis Executive Rulemaking
The first principle to be included in the legislative framework is the subsidiarity of soft law vis-à-vis hard executive rulemaking. In countering the concerns over soft law replacing hard law, the Commission clearly should be obliged to give priority to the use of executive rulemaking (Article 290 and Article 291 TFEU) where suitable mandates for delegated or implementing acts exist. Executive rulemaking under Article 290 and 291 TFEU is subject to clear procedural stipulations and constitutional requirements. They are subject to control by Parliament and Member States whilst serving the democratic legitimacy of EU rulemaking and its respect for the rule of law much better than soft law. Furthermore, they have similar benefits as soft law regarding the inclusion of expertise, flexibility, and ease of procedures that are clearly provided for. Articles 7 and 8 of the Comitology-Regulation 182/2011 also contain provisions for decision-making in cases of urgency, exceptional situations, and expedited procedures. If, nevertheless, the Commission decides not to use these instruments it must be obliged to give reasons and explain its recourse to soft law.
- Parliamentary and Member State Control
The second type of provisions should provide for control mechanisms to remedy fears of illegitimate quasi-law-making. The framework for implementing acts (Article 291 (2) and (3) TFEU; Comitology Regulation 182/2011) provides for a limited control the by Member States through Comitology committees and by Parliament. One should establish comparable control mechanisms in the general framework for EU soft law as the situation is similar: soft law often interferes with the domestic implementation of EU law. Hence, the Commission should be obliged to consult with national representatives before adopting soft law. In case of urgency, ex-ante information and ex-post consultation within a strict deadline of two weeks may be provided. Concerning the European Parliament, under Article 11 Comitology Regulation 182/2011 it is only allowed to complain about a transgression of the implementing powers granted to the Commission in the basic act, which then requires the Commission to review its draft and inform Parliament accordingly. A comparable, though quite weak control mechanism over soft law would still represent a considerable step forward for Parliament compared to the current situation. Hence, the general framework act should provide for a consultation mechanism with Parliament as well, giving Parliament a right to formulate recommendations within four weeks, addressing the substance of the soft law instrument and relevant legal requirements, including the above-mentioned subsidiarity vis-à-vis executive rulemaking. In policy fields in which there hardly exists any EU legislation (but legislative competence), the framework might even grant a veto right to Parliament within a strict deadline. In urgent cases, the consultation process may take place in hindsight after the immediate information of Parliament.
- Consultations with Stakeholders
Thirdly, for soft law that interferes with the implementation of EU law, a duty to consult with stakeholders which allows them to provide feedback before the adoption of soft law should be added, similar to what is foreseen in the Better Regulation Agenda with regard to delegated and implementing acts. In urgent measures, such opportunity must be available in hindsight.
- Temporary, Transparent and Reasoned
Further provisions should foresee a limited duration of soft law, transparency rules, and a duty to give reasons. In case of urgency, soft law should automatically expire after six months, as provided for in the Comitology Regulation 182/2011 with regard to urgent implementing measures. Transparency should require open information about the procedures followed in the drafting stage and the consultations with Parliament, Member States, and stakeholders. The reasons given should address the abovementioned issue of priority to executive rulemaking, indicate a legal basis for EU action, and report about the situation and the general objectives to be achieved. In case of urgency measures, the standards for transparency and reasons giving can be mitigated. Article II-6 of the ReNEUAL Rules on Administrative Rule-Making is a useful inspiration as it provides for the procedural rules to be followed in case of executive rulemaking of general application, in particular expedited procedures.
- Domestic Legal Effect
Another challenge of EU soft law is its unclear legal effect before domestic bodies. The adoption of a general legislative framework allows for clarification of this issue by including a template guidance mechanism (unless otherwise provided) such as a duty of domestic administrations and courts ‘to comply or explain’. A related challenge is the lack of judicial review which was also lamented by the European Parliament. Due to its lack of legal bindingness, soft law is not accepted by the CJEU as a challengeable act. The approach of the CJEU, however, is more relaxed under the preliminary reference procedure since Article 267 TFEU confers jurisdiction to deliver a preliminary ruling on the validity and interpretation of all acts of the EU. The latter, however, is of little help in the soft law context as domestic courts are not under a legal obligation to apply, or even comply with soft law so it may be deemed not decisive for their application of EU rules. A clear statement in a general framework act on EU soft law regarding the normal legal effect of EU soft law for domestic institutions might contribute to this issue being reconsidered and might affect the CJEU´s approach which requires readjustments. Admittedly, the lack of individual standing in actions for annulment is not solved therewith.
Soft modes of EU governance are highly salient, in particular when it comes to domestic implementation of EU law. Whereas EU soft law offers many benefits for domestic implementation, their constitutional challenges for democratic legitimacy and rule of law have become manifest as well. The challenges of a proliferate usage of soft law for the legitimacy of EU governance and the rule of law in the EU should best be addressed by the EU legislator adopting a general legal framework for the adoption of EU soft law, whose core elements were proposed above. The pending project of enacting a regulation on EU administrative procedures would be a suitable opportunity to incorporate these proposals.
Posted by Wolfgang Weiß, Professor of Public, European and Public International Law at the German University of Administrative Sciences Speyer and Senior Fellow at the German Research Institute for Public Administration. For a more elaborate version of this blog post see my recent article in 2022 REALaw issue 1.
Suggested citation: W Weiß, “A Proposal for Solving EU Soft Law´s Challenges to Rule of Law and Democracy”, REALaw.blog available at https://realaw.blog/?p=1511.