My contribution to the volume on The Legal Effects of EU Soft Law – Theory, Language and Sectoral Insights considers longstanding questions on validity, bindingness and normativity of law through the lens of EU soft law. I start by exploring legal and practical effects of soft law in two policy fields, continue with the analysis of the case law of the CJEU, and then present elements that, in my opinion, give ground for arguments regarding the validity, normativity and bindingness of soft law in the EU. At the end, I offer a few concluding reflections in this regard.

State aid and environmental policy as two case-study policies of soft law

Due to vast use of soft law in EU policies I limited my research to two EU policy areas where soft law is widely used, state aid and environmental policy.

In state aid policy, the European Commission regularly adopts guidelines, recommendations, communications and notices. The trend has not decreased in the last three decades. State aid policy thus owes it to soft instruments to be “rule based.”  

In this field, soft law influences the legal status of Member States and individuals (indirectly) in two different ways: first, through enforcement mechanisms, and secondly, through “regulation by information”.The first situation appears when the European Commission adopts binding individual decisions with regard to the compatibility or incompatibility of national state aid. The decision is grounded in Commission’s soft rules. If the same rules would be determined in binding legislation, it would be applied in the same way. Hence, soft law is enforced in the same manner as hard law would be: through binding (individual) regulation (decision). In practice, the nature of rules is thus irrelevant (M. Cini). Further, if such a decision is challenged before the CJEU, the degree of judicial review is limited (M. Cini).

As to “regulation by information”, soft law guides Member States in determining national policies and adopting national administrative decisions regarding allocation of state aid (F. Snyder, S. Velutti). The situation refers to the power of public institutions to regulate the conduct of others without using (binding) coercive mechanisms. Addressees of soft measures adapt their behaviour semi – voluntarily in order to substantially reduce the possibility of a future negative decision of the European Commission.

Regarding the above and if the concept of normativity is defined as the capacity of an act to affect directly (by its very existence) or indirectly (through the adoption of Commission’s individual binding decisions and the judgments of the CJEU) the rights and obligations of Member States, EU institutions and individuals (such an understanding is in accordance with the CJEU’s reasoning in case Grimaldi, ECLI:EU:C:1989:646), I argue that soft law (beside acting as a “voluntary must” for the Member States), often possess a normative value corresponding to the normative value of binding rules.

In environmental policy, the situation is somewhat different. I argue that the normativity of soft law in this field exists in an informative and preparatory way (when they promote further negotiations, develop environmental policies and urge to more effective enforcement of existing environmental legislation) and in a steering way (soft law as an explanatory tool of framework environmental measures). The latter generally applies in situations of imprecisely defined framework norms (J. Scott), particularly framework directives: open-ended framework norms are supplemented with soft law (mostly recommendations and guidelines). Such guidance is treated as authoritative by Member States and thus influences the understanding and practice of legal obligation determined by binding EU rules. As in state aid policy, the European Commission is entrusted with the task of monitoring and ensuring an appropriate enforcement of environmental legislation. In this regard, it adopts individual decisions. In comparison to state aid policy, the European Commission has more hard rules to lean on. However, this does not prevent it from relying on soft law: although less extensively, soft law represents substantive rules on which individual decision is (partly) grounded – also in this field.

Soft law in the case law of the CJEU

Despite the initial reluctance to recognize the existence of soft law instruments  (see for example Cadillon, ECLI:EU:C:1971:47, or Béguelin, ECLI:EU:C:1971:113), the CJEU today acknowledges not only their existence, but also their increasing importance within the EU legal system. In this regard it is worth mentioning that the CJEU understands the notion of “creating legal effect” sensu lato, recognizing that soft law may – through interpretation and in relation to other acts – create indirect legal effects and have normative value despite their softness (Grimaldi, ECLI:EU:C:1989:646). The CJEU therefore acknowledges different levels of normativity of soft law:

• soft law as a supplementary aid to interpretation (minimal normative value)

Without limitation to a specific legal field, the Court most often uses soft law to confirm the interpretation or argumentation given on hard (EU) law or case law of the CJEU. In these situations, the Court first uses arguments as they transpire from hard law or courts case law, and then it backs up such an interpretation by relying on EU soft law (Auer, ECLI:EU:C:1979:34, Thieffry, ECLI:EU:C:1977:65, Luisi and Carbone, ECLI:EU:C:1984:35, Federal Republic of Germany and others v Commission of the European Communities, ECLI:EU:C:1987:351).

• soft law as a source for interpretation (higher normative value)

Less often, the CJEU applies non-binding rules as a source for interpretation of hard law(higher normative value). In these situations, soft law serves as an instrument on the basis of which the interpretation of hard law is actually given. This approach is limited and applied only to (joint) declaration adopted in the minutes of the meeting during which certain hard law was adopted. I describe prerequisites of this approach in more details in my chapter.

• (self-) binding effects of soft law as the highest normative value

In certain specific circumstances the CJEU recognizes (self-) binding effects of soft law. In these situations, the normative intensity of soft law moves towards the normative intensity of “traditional” (binding) legislation. This situation is typical in policy fields characterised by a wide discretion (mostly) of the European Commission (for example state aid policy, partly environmental policy or civil service law). The CJEU has repeatedly referred to the principle of equal treatment and the principle of the protection of legitimate expectations to hold that if an EU institution has determined how it will exercise its discretion, even if by means of soft law rules, this soft law will have self-binding effect on the adopting EU institution. The same applies if soft law rules are adopted in collaboration between the EU institution and the Member States. The latter is however subject to additional conditions. I explain them in my chapter.

Reflections on validity, normativity and “bindingness” of soft law

The approach of the CJEU and practice in two policy fields prove that different levels (degrees) of normativity does not affect the validity of soft law acts as normative acts. Soft law acts are valid legal norms. They produce indirect legal effects (enjoying, thus, normativity) without having legally binding force per se. Accordingly, the legal binding force of a legal provision and its normativity are not necessarily correlated.  The analysis of sector specific soft law acts and jurisprudence of the CJEU enables a conclusion that, in certain limited situations described in my chapter, soft law acts are capable of having binding legal effect. This means that “softness” and “bindingness” are not contraditio in terminis. The fact that EU soft law can have both binding and non-binding legal effects without turning into hard law on the one hand, and the existence of hybrid legal fields where soft law and hard law coexist on the other hand implies in my opinion the need for adapting or reconceptualizing the notion of “bindingness”: the widely accepted classical understanding according to which it only applies to instruments with inherent binding force (hence hard law) does not appropriately reflect today’s differentiation of EU legal instruments and the various important legal effects EU soft law can produce. In this regard I argue that it may be worth revising the understanding of bindingness to create a broader concept that would include soft law instruments which have “incidental” binding force in certain circumstances. Namely, contrary to acts with binding force attributed them as an “inherent” feature of hard law, soft law lacks such an inherent feature, but may gain “incidental” legally binding force (in certain circumstances described in my paper) causing the same legal effects as binding legislation.

Conclusion

The EU regulatory framework is remarkably different today from that of three decades ago when EU soft law started its way as an instrument of governance. The hybridity caused by the co-existence of hard and soft law norms in EU policies is becoming a rule. Challenges remain, however. The existing differentiated regulatory environment in the EU eagerly calls for a conceptual update in order to recognize to soft law the status it deserves in the EU legal system.

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Posted by Verena Rošic Feguš, Associate Professor, PhD, European Law Faculty, New University

Suggested citation: Verena Rošic Feguš, “EU soft law: validity, normativity and ʻbindingnessʼ reviewed”, REALaw.blog, available at https://realaw.blog/?p=2836