EU soft law has currently two characteristics: empirically, its spectacular expansion as an instrument of governance; and doctrinally, the uncertainty surrounding the concept and its place in the Union’s legal order. On the one hand, soft law is an instrument of governance that is widely used by EU institutions and agencies, as well as by the Member States. The rapid proliferation and use of soft law measures in Europe can be attributed to institutional and procedural choices made by EU supranational and national authorities, as well as to the assumption that soft law is an effective regulatory tool to guide the behaviour of its addressees. Soft law, on the other hand, is surrounded by great uncertainty on fundamental issues such as its precise place in the EU legal order, the factors that contribute to its practical effectiveness, how the latter should be measured, or the extent and sources of its legitimacy. The purpose of the book presented in this blog series is to shed some light on another issue that needs clarification: ‘The legal effects of EU soft law’ (Edward Elgar, 2023).

Bindingness. Legally binding force. Legal effects – What is in a name?

EU soft law today is very often understood as rules of conduct laid down in instruments which, although not legally binding, are intended to have − and often do have − practical effects and may have certain indirect legal effects. This definition seems to pose a logical dilemma, namely, how can these measures have legal effects if they are not binding? This problem can be addressed in at least two ways. Firstly, the practical and, in particular, the legal effects of soft law may suggest that ‘bindingness’ or ‘legally binding force’ is not a classificatory, bivalent concept − i.e. one that applies all or nothing −, but a typological, gradual concept − i.e. one that applies to a greater or lesser extent. This first approach would lead to a weak distinction between hard and soft law. Secondly, ‘bindingness’ or ‘legally binding force’ may be considered a special case of legal effect, which requires an exploration of the scope and forms of this broader notion. In this second approach, the concept of legally binding force would remain bivalent, leading to a strong distinction between hard and soft law.

These two strategies are explored in the first part of the book, which presents a theoretical and doctrinal approach to the legal effects of EU soft law. In his contribution (‘Beyond bindingness: A typology of EU soft law legal effects’), Luis Arroyo Jiménez starts from the assumption that ‘legally binding effects’ − understood as the legal effects of a norm resulting from its legally binding nature − constitute a specific type of ‘legal effects’. Accordingly, EU soft law may have other legal effects that are not covered by the notion of ‘binding effect’. This chapter seeks to test this hypothesis by exploring a possible typology of legal effects of EU soft law, distinguishing between interpretation, annulment, compensation and sanction.

In his contribution (‘Reconsidering the legal effect of EU soft law in national implementation’), Wolfgang Weiß focuses on the use of soft law in areas of decentralized enforcement. In particular, the chapter claims that the existence of soft law measures issued by the Commission may give rise to legitimate expectations on the side of individuals affected by the implementation of these specific sources of EU law. In addition, this contribution makes a normative claim, namely that this legal effect of soft law should be acknowledged irrespective of whether the enforcement of EU hard law to which soft law relates is in the hands of EU or domestic authorities.

In the third chapter of this volume (‘EU soft law: Validity, normativity and ‘bindingness’ reviewed’), Verena Rošic Feguš approaches EU soft law from the perspective of legal theory. Starting from the premise that normativity of soft law is a matter of degree, she puts forward that normativity and bindingness are two separate properties of a legal norm. Consequently, bindingness is not a precondition for identifying certain norms as valid law. After exploring the role that these concepts play in EU law, she proposes a distinction between validity, normativity, and bindingness, and suggests that we adjust the legal understanding of valid law to include not only norms with legally binding force per se, but also soft law norms that may affect the rights and obligations of their addressees at different levels.

Legal effects. Practical effects – What role for language?

The fact that soft law is not legally binding is perfectly compatible with its ability to effectively influence the behaviour of its recipients. Soft law instruments complement the governance toolbox and can be used to replace or, more often, supplement hard law rules. The second part of this volume focuses on a somewhat understudied issue, namely the role of language in producing both practical and legal effects of soft law.

This is first addressed by Danai Petropoulou Ionescu and Mariolina Eliantonio (‘Words are stones: Constructing bindingness through language in EU environmental soft law’), who argue that the use of language in soft law instruments plays a crucial role in conveying authority and driving compliance by blurring the lines between obligations, recommendations, and information. In their chapter, they examine the use of language in EU environmental soft law measures and argue that they overwhelmingly use strictly prescriptive language that leaves little room for choice. This compromises the formally voluntary nature of the instruments, creating a façade of bindingness and blurring the boundaries between binding and non-binding norms.

In the second chapter devoted to the study of the relationship between EU soft law and language (‘Verbal markers of ‘softness’ in EU law? A computer-based analysis to delimit soft law and hard law focusing on ‘directive-like recommendations’’), Petra Lea Láncos and Eljalill Tauschinsky compare directives and ‘directive-like recommendations’, in an attempt to ascertain whether their respective wording reflects the differences in their inherent bindingness. Building multilingual corpora of directive-like recommendations and of comparable directives, they use a python language processing package and clustering to carry out a computer-based analysis of terms characteristic of the different corpora to identify verbal markers of ‘softness’ and ‘bindingness’ in different language versions.

In their contribution (‘A legal argumentative framework for persuasive EU soft law: The case of the European Commission recommendations’), Corina Andone and Florin Coman-Kund argue that EU soft law should be understood as a set of legally non-binding instruments that can nevertheless be very effective in practice because of their persuasive force. Their effectiveness should not be seen in terms of how ‘hardened’ they have become, but rather in terms of their ability to persuade their addressees to adopt the desired course of action. Accordingly, they propose a toolkit of both legal and argumentative parameters to evaluate and improve the quality and effectiveness of EU soft law instruments.

Top-down. Bottom-up – What role for sectors of reference?

The third part of the volume consists of a sectoral analysis focusing on the examination of three policy areas. The book thus combines a general, transversal approach with a bottom-up, sectoral approach to EU soft law. Three areas of reference (“Referenzgebiete”) have been selected, namely areas of law in which relevant trends or processes of transformation are visible and which provide our analysis with case studies to test other, more general claims.

In the first chapter (‘The comply-or-explain mechanism in the European Supervisory Authorities, or: Does Meroni allow nudging?’), Robert Böttner analyses the soft law instruments issued by agencies forming the European System of Financial Supervision. The founding regulations of these agencies have established a comply-or-explain mechanism that confers upon these formally non-binding instruments a hardened normativity and exerts a sort of pressure on national authorities to align themselves with them. Meanwhile, this chapter also explores the frictions between the powers granted to these agencies by secondary legislation and the limitations laid down in primary law, as construed under the Meroni doctrine.

Next, Annalisa Volpato puts the focus on a different type of EU soft law, namely on technical standards (‘The legal effects of harmonised standards in EU law: From hard to soft law, and back?’). Despite both their private character and their non-binding nature, some technical standards have also undergone a process of juridification that has even led the Court of Justice to declare that they are a part of EU law. This chapter explores this process, studies the category of so-called ‘harmonised standards’, i.e. those standards that are issued based on a request made by the Commission for the application of EU secondary legislation, and reviews the different types of legal effects that this sort of technical standard may have.

Finally, Emanuel Kollmann’s chapter deals with the legal effects of EU soft law in the field of telecommunication (‘Hard rules for soft law: The case of EU telecommunications law’). EU secondary law specifically empowers the competent EU authorities to issue certain soft law instruments and at the same time obliges national authorities ‘to take the utmost account of’ them in carrying out their tasks. The author argues that the legal effects of this type of EU soft law cannot be understood in a one-size-fits-all way, but must be interpreted in the light of the totality of the provisions laid down in the respective legal bases, as well as the underlying legislative intention, the conditions for adoption and the procedural rules provided for in the relevant EU legislation.

This brief perusal of the volume’s chapters shows that the questions surrounding the legal effects of EU soft law may be addressed through doctrinal and empirical approaches, yielding valuable insights into the purpose, nature and effects of the soft EU regulation. At the same time, this volume is evidence that there is still abundant room for further research, in particular concerning the sectoral variance of the type and effects of EU soft law.

Posted by Professor Petra Lea Láncos (Full professor, Péter Pázmány Catholic University, Faculty of Law and Political Sciences; lancos.petra.lea[@]jak.ppke.hu)  and Professor Luis Arroyo Jiménez (Jean Monnet Chair of European Administrative Law at UCLM; luis.arroyo[@]uclm.es)

Suggested citation: P L Láncos and L Arroyo Jiménez, “The legal effects of EU soft law: An introduction”, REALaw blog available at https://wp.me/pcQ0x2-Jk.