The current strong reliance on legally obscure ‘soft law’ instruments in EU regulatory governance has quite far-reaching effects blurring and disturbing legal certainty, the distribution of competences between the EU and its Member States, and the balance of powers between the EU institutions. The use of recommendations, opinions, communications, guidelines and other such instruments in a remarkable number of policy areas can thus be suspected of eluding established decision-making procedures and ultimately the principle of democracy. Based on our most recent publication on the topic, this blogpost argues for reconceiving EU soft law instruments as essentially non-binding persuasive acts that could be quite effective in practice when they trigger a high degree of compliance by their addressees. In line with this view, we propose a novel legal-argumentative framework aimed at offering a ‘closer-to-reality’ understanding, better drafting, and ultimately enhanced effectiveness of these instruments. On the one hand, this framework encompasses legal parameters pertaining to the duty to state reasons, taking a strict stance on the clarity, consistency and adequacy of the reasoning employed. On the other hand, this framework includes argumentative parameters regarding the content, design, effectiveness and soundness of these instruments.
Controversial EU Soft Law
Within the EU, soft law has been gaining ground especially since the 2000s as a tool of multilevel governance moving away from ‘command-and-control’ regulatory approaches. It has been particularly praised for its flexibility, adaptability, capacity to enable effective cooperation between actors with different interests and values, and thus eventually strengthening the European market. Yet bringing about such legal change has its ‘curses’ pertaining to its very appropriateness and effectiveness as a governance tool. Legitimacy issues, the blurred legal effects it might arguably entail and the potential risks of abuse of power it might bring about are judged as likely to undermine the very principles soft law was expected to foster, as pointed among others by Jan Klabbers and Oana Stefan.
Cutting the ‘Gordian knot’
Like a ‘Gordian knot’, the large array of legality, legitimacy and accountability issues pertaining to soft law seem complex and unsolvable at this stage. To cut this intricate knot, and avoid the conceptual and normative ambiguities created by the very concept of soft law, we see these instruments, similarly to Snyder’s definition of soft law, as ‘legally non-binding norms which may entail effects in practice.’ Additionally, we suggest that, precisely because they are non-binding, the persuasive force of soft law instruments is an essential feature influencing their effectiveness, quantified through the degree of observance/compliance by the addressees of such regulatory tools.
In our view, soft law instruments cannot be intended to produce legal effects directly (creating, modifying, extinguishing legal rights and obligations), or otherwise they would be legally binding acts. Many have argued that EU non-binding acts gain certain legal effects indirectly through the operation of EU legal principles, in particular the duty of sincere cooperation, legitimate expectations, equal treatment, legal certainty or when non-binding measures supplement EU binding acts or contribute to their implementation. Yet to be sure, the duty to take non-binding acts into account enshrined in the Grimaldi jurisprudence, arguably stemming from the principle of loyal cooperation, does not amount to an outright duty to comply with the instrument at issue neither by the addressee nor by the courts.
We therefore suggest to gradually remove the ambiguity around the legal effects of EU soft law by, first, going one step back: deeming EU soft law instruments, in line with the EU constitutional framework and CJEU jurisprudence, as legally non-binding acts or as legal acts with no binding force. A step forward is then taken by singling out their persuasive force as the distinctive feature of these legal acts and the key to their effectiveness. We thus overall concur with CJEU’s stance in Case C-16/16P Belgium v Commission, that ‘Article 288 TFEU intended to confer on the institutions which usually adopt recommendations a power to exhort and to persuade (emphasis added), distinct from the power to adopt acts having binding force’, and maintain that such a stance holds, beyond the specific category of EU recommendations, for EU soft law in general.
From the Duty to State Reasons as a Legal and Normative Parameter…
As legally non-binding but persuasive acts, EU soft law instruments require in turn special attention being paid to their intended effects as a way to foster voluntary compliance by addressees. It is in view of their core persuasive dimension that we suggest that the duty to state reasons is particularly relevant for this category of legal instruments. Article 296 (2) TFEU refers to this duty as applicable to legal acts, which upon closer reading include non-binding acts, at least the recommendations and opinions formally enshrined in Article 288 TFEU. Whereas the criteria and intensity of the duty to state reasons under Article 296 (2) TFEU with regard to soft law acts remain rather obscure in current legal scholarship and practice, we suggest, both legally and normatively, a higher intensity ‘duty to state reasons’ test for these instruments in view of the importance attached to their persuasive value. Clear, adequate and sufficient reasons and explanations should thus be provided regarding the chosen legal basis, the legal-factual background prompting the adoption of the instrument, including considerations of subsidiarity and proportionality, as well as the intended aims/objectives of the instrument.
The distinctive persuasive nature of EU soft law instruments brings with it all the more an extension of this principle to all genuine EU soft law acts. This duty is essential in order to make explicit the validity, soundness and completeness of the reasoning used in such instruments to enable them to be effective. What is more, closer attention needs to be paid to highlighting their persuasive rather than their prescriptive nature, and delineating them from legally binding acts. Examining and assessing EU soft law instruments as non-binding but (potentially highly) persuasive instruments therefore entails complementing a legal analysis with insights from argumentation theory.
… To a Legal-Argumentative Perspective on EU Soft Law
Since the persuasive capacities of EU soft law instruments need to be fully taken into account if they are to ideally remain non-binding, the reasoning/argumentation employed to persuade addressees should play a crucial role for their effectiveness. We propose four argumentative parameters with a view to assess and enhance the persuasive force of EU soft law instruments. First, the argumentative content of EU soft law instruments should enable distinguishing them from legally binding instruments. Second, we call for particular attention to be paid to the argumentative design of EU soft law instruments in such a way that their formally non-binding nature is matched by persuasive suggestions inviting addressees to follow a course of action. Third, we point out that the argumentative effectiveness of EU soft law instruments plays a significant role in fostering voluntary compliance in the absence of legal coercion. Finally, we emphasize that argumentative soundness is vital to obtain compliance with EU soft law instruments through valid (non-fallacious) reasoning. The proposed legal-argumentative framework links up the legal parameters pertaining to the duty to state reasons – i.e., legal basis, legal-factual background, aims of the instrument – assessed in light of the judicially forged criteria of ‘clarity’, ‘consistency,’ ‘adequacy’ – to the four previously discussed argumentative parameters. Furthermore, both substance and form (style, language and structure) should reflect the nature and particular features of EU soft law instruments as consistently as possible.
By analyzing and evaluating EU soft law instruments based on this novel legal-argumentative framework, it is possible to understand to which extent persuasive justificatory reasons are employed, whether the instrument is legally ambiguous and whether its effectiveness (i.e., level of voluntary compliance) is likely to be affected. The framework also enables a proper assessment of the soundness of the arguments employed by the enactor of the instrument that brings to light whether and to which extent arguments fall short of being sound, and it may further help with drafting solid convincing reasoning in EU soft law tools. With a view to distinguish and further increase the effectiveness of EU soft law instruments as effective persuasive tools, we suggest (1) the use of an inviting language in line with the non-binding legal nature of the instrument, (2) a more argumentative style reflecting the legal and argumentative parameters discussed here, and (3) a more idiosyncratic drafting template for EU soft law acts, featuring the intertwining of reasons with suggested measures/rules of conduct throughout the instrument.
Posted by Corina Andone(Amsterdam Centre for Language and Communication, University of Amsterdam, C.Andone@uva.nl) and Florin Coman-Kund (Erasmus School of Law, Erasmus University Rotterdam, comankund@law.eur.nl). This blog post is based on Corina Andone and Florin Coman-Kund, ‘A legal-argumentative framework for persuasive EU soft law: The case of the European Commission’s recommendations’ in P. Láncos, N. Xanthoulis and L. Arroyo Jiménez (Eds.) The Legal Effects of EU Soft Law: Theory, Language and Sectoral Insights into EU Multi-level Governance (Edward Elgar 2023) pp. 142-174.
