European Union Soft Law: New Developments Concerning the Divide Between Legally Binding Force and Legal Effects

Publication Date01 Sep 2012
AuthorOana Stefan
European Union Soft Law:New Developments
Concerning the Divide Between Legally Binding
Force and Legal Effects
Oana Stefan*
The judgment in Polska Telefonia Cyfrowa sheds light on the legal effects of soft law instruments
that the Court of Justice of the European Union (CJEU) will recognise, while distinguishing
between their legally binding force and their legal or practical effects. European soft law is now
often relied on in national courts, and can have an important impact on the rights and obligations
of individuals.However,some of the goals of the Commission are only partly attainable due to the
specific legal status of soft law instruments, and the current languages policy of the European
Union.Given that soft law was not found to expressly impose obligations on individuals,the Court
held that there was no requirement to publish it in all the official languages of the European
Union.This has a negative impact on transparency and legal certainty,diminishing the role of soft
law instruments in promoting such goals.
The proliferation of guidelines, communications, notices, recommendations, etc
– generally known as ‘soft law’ – is a reality on the European regulatory scene.
Such instruments, coming in a large variety of forms and under a range of
different titles, follow the same legal regime as recommendations and opinions,
and hence have no legally binding force according to Article 288 TFEU.This
means that they cannot be in and of themselves legally binding,‘in the sense of
an [EU] regulation or a law in the popular sense of the word.1Nonetheless, the
European Court considered in its seminal Grimaldi judgment that soft law‘cannot
be regarded as having no legal effect.2Thus, a distinction needs to be made
between the legally binding force and the legal effects of norms, as apparent also
in the seminal3definition of soft law laid down by Snyder: ‘rules of conduct
*Assistant Professor,HEC Paris (Business Law and TaxationDepar tment). I would like to thank Imelda
Maher, Mary Dobbs, Marek Martyniszyn,Arnaud van Waeyenberge,and the anonymous reviewer for
comments on earlier versions of this note.All errors are of course my own.
1 F. Snyder,‘Interinstitutional Agreements: Forms and Constitutional Limitations’ in G.Winter (ed),
Sources and Categories of European Union Law: A Comparative and Reform Perspective (Baden-Baden:
Nomos Verl-Ges,1996) 463.
2 Case C-322/88 Grimaldi [1989] ECR I-4407 at [18].
3 This is the most frequently quoted definition of soft law:J. P. Burgess,‘What’s So European About
the European Union?: Legitimacy Between Institution and Identity’ (2002) 5 European Journal of
SocialTheory 467, 469; D. Chalmers,‘Community Law-Making’in D. Chalmers, C.Hadjiemmanuil,
G. Monti, and A.Tomkins,European Union Law Texts and Materials (Cambridge: CUP,2006) 137; M.
Cini,‘The Soft Law Approach:Commission Rule-Making in the EU’s State Aid Regime’ (2001) 8
JEPP 192, 194;D. Hodson and I. Maher,‘Soft Law and Sanctions: Economic Policy Co-ordination
and Reform of the Stability and Growth Pact’ (2004) 11 JEPP 798, 801; I. Maher,‘Law and the
Open Method of Coordination:Towards a New Flexibility in European Policy-Making?’ (2004) 2
ZSE 248, 251;S. de la Rosa,‘The Open Method of Coordination in the New Member States – the
Oana Stefan
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited. 879
(2012) 75(5) MLR 865–893

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