Introduction
In a contribution to the recently published volume on The Legal Effects of EU Soft Law, edited by Petra Law Láncos, Napoleon Xanthoulis, and Luis Arroyo Jiménez, which explores new theoretical and empirical angles to understand the EU soft law phenomenon, we revisit a question originally posed by Alexandre Flückiger: why do we obey soft law? What drives us to follow soft rules of conduct? In our Chapter, we posit that a potential way to answer these questions is found in the way soft law measures convey authority to their addressees. Sure, soft law measures are not legally binding. Yet, research on this matter has revealed that in lieu of legal bindingness, soft law measures still find ways to become politically, morally, or socially binding (see here and here). Usually, this occurs through alternative coercion mechanisms, which typically rely on language and argumentation, moral persuasion, peer praise and peer pressure, and exclusionary practices. Departing from this, we empirically investigate how EU soft law instruments in the field of EU environmental law use language to prescribe behaviour and create a façade of bindingness beyond legal obligation. To gain insight on this, we analysed Guidance Documents issued by the European Commission under four key environmental Directives: the EIA and SEA Directives, and the Birds and Habitats Directives, thereby covering the majority of EU Environmental Assessment and Biodiversity policies.
The language of (soft) law: perceiving power and authority
Research on EU soft law has revealed that these non-binding instruments can bring about several practical and legal effects, which are almost impossible to exhaustively list as such, but often take the shape of framing and preparing national and Union-level policy, shaping public discourse and providing authoritative definitions of terms and concepts, interpreting Union law provisions, and steering policy. What is less known, however, and what is addressed in several Chapters of this volume, is how these effects come about. Now, we know that Member States or other addressees are not legally bound by the soft law measures, so there is no legal obligation for them to follow whatever guidance the Commission issues. Still, in several ways, national authorities seem to choose to comply with soft law measures when transposing, interpreting, and implementing EU law (see several contributions here). In simple terms, this showcases that there is a ‘mechanism’ beyond legal obligation that drives addressees to comply (whether in parts or entirely) with soft law – i.e., a mechanism that relates to how addressees perceive the power and authority of the measures.
With this in mind, we argue that soft law measures employ mechanisms of coercion that go beyond the threat of sanctions, but instead are based on elements related to socialisation – such as argumentation, pressure and praise, or social exclusion through shaming. In this regard, while not legally binding, soft law measures may create a façade of different types of bindingness based on the idea that not following the measure might be ‘frowned upon’ or the ‘wrong thing to do’, or that compliance is imperative for the achievement of the occasional policy goal. Through such coercion mechanisms, soft law may create a perception of obligation for the addressees, which may be motivated by social, political, or moral reasons, essentially highlighting the difference between feeling persuaded and being legally obligated.
This, of course, is not a new idea. Language, semantics, and authority are fundamentally connected with one another, and their interactions help us perceive messages in terms of their strength. This is true of commonplace every-day interactions as well as of legal norms. For instance, when we are told that something must be done or that we ought to carry out a specific task, we might perceive it more strongly – e.g., assign more urgency to it or place the task higher on our agenda – than when we are told that we may engage with the task. Bringing this back to soft law, we argue that there is a connection between the ‘strength’ of a claim and its potential perceived bindingness, and examining this connection gives us a better understanding of this phenomenon.
Key Findings: Quantitative and qualitative insights into the language of soft law
To examine this particular dynamic between language and authority, we surveyed 30 Guidance Documents issued by the European Commission in connection to four environmental Directives in the areas of impact assessment and biodiversity. In doing so, we looked for statements wherein the Guidance Documents try to motivate action from the side of the addressee (e.g., to interpret a rule in a certain manner, or to employ a particular methodology when evaluating a project). These statements were then labelled as being strongly prescriptive, moderately prescriptive, or permissive/weakly prescriptive on the basis of key modals or a number of other indicators such as the presence of phrases as “is recommended”, “is necessary” et cetera that indicate different levels of obligation or permission. The result of this analysis was the identification of over 4,500 statements that, in one way or another, attempted to ‘nudge’ the addressees to behave in a certain way.
Overall, our analysis revealed that, overwhelmingly, all Guidance Documents included in our analysis make use of strongly prescriptive language at a much higher rate than moderately or weakly prescriptive language, effectively accounting to about half of the statements. Specifically, over all 30 soft law instruments analysed in our Chapter, strong language (e.g., must, need, is required) was used at a 48% rate, while moderate language (e.g., should, ought, is recommended) was used at a rate of 31%, and weak language (e.g., can, could) is utilised less than any other level at 21% overall. With some relative variation, we found that this trend is present at the aggregate level, at the policy field level, at Directive level, and at individual Guidance level. What we can see from these results, and especially due to their consistency across levels, is that while indeed not legally binding, soft law measures often utilise strongly prescriptive language as a coercion mechanism to convey authority and persuade the addressees – which are, for the most part, national authorities – to take a particular course of action when dealing with EU law. They must interpret a term in a certain way, they have to adhere to a set of criteria when making decisions. In this way, these soft law measures seek to make their addressees feel morally, politically, or socially obliged to carry out a specific action without necessitating a legal obligation to do so.
Of course, these numbers can only give us a starting point to understand this issue and do not paint the entire picture. This more quantitative insight is valuable in revealing potential communication patterns present in soft law instruments, still a closer look at the context and purpose of each use – essentially, focusing not only on the ‘how much?’ but also the ‘how?’ – brought additional interesting findings. In the course of our analysis, we identified a number of patterns on how different types of language are used, specifically in:
- good practice examples;
- definitions of terms and concepts;
- examples of possible actions;
- procedural recommendations;
- references to legislation and case law.
We found that each of these patterns created a distinct form of alternative obligation imposed on the addressees. For instance, good practice examples often made claims including words such as ‘should’ or ‘is advisable’, or in some way indicated that following the prescribed course of action would be ‘the right thing to do’. Moreover, when Guidance Documents provide definitions of terms and concepts, they do so quite authoritatively by using strong language such as ‘must’, ‘shall’, and so on. For example, a Guidance issued in relation to Article 9 of the Birds Directive defines the term ‘serious damage’ and lists out three criteria (which the Guidance recognises as cumulative) that must be met in order for Member States to derogate from Articles 5-8 of the Directive. Similarly, another Guidance on dealing with climate change in Natura 2000 sites sets out a number of procedural recommendations which, according to the document, Member States are ‘essentially required’ to follow. In other words, what we see is that the wording of such instruments, might make them seem much more prescriptive than they are, might create a perception that there is a necessity (either legal or otherwise) to apply them, and may even go beyond what is initially envisioned in a given Directive and potentially set additional obligations for the addressees.
What does this tell us about the rule of EU soft law?
Through our analysis, what became crystal clear is that due to the overall strictness of the language used in the soft law measures we analysed, it is rather difficult to distinguish between what belongs to the relevant Directive and what stems from the Commission as the author of the Guidances. In this sense, it is also almost impossible to distinguish between statements which refer to legal obligations, recommendations, and statements which are there for the pure purpose of information. This obscurity is valuable in the construction of the soft law bindingness façade as it helps to not only construct alternative types of bindingness, but also to potentially give the impression of legal bindingness. Ultimately, this blurs the lines between legal and non-legal obligations and the boundaries between soft and hard law norms. When this happens, it becomes an issue for clarity and legal certainty as both are potentially undermined, and may speak to the already ‘shaky’ legitimacy of soft law.
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Posted by Danai Petropoulou Ionescu, PhD Candidate at the Faculty of Law of Maastricht University, and Mariolina Eliantonio, Professor of European and Comparative Administrative Law and Procedure at the Faculty of Law of Maastricht University.
Suggested citation: D Petropoulou Ionescu & M Eliantonio, ‘Words are stones: Constructing bindingness through language in EU environmental soft law’ REALaw.blog Available at: https://realaw.blog/?p=2843
