Legislating softly: The effect of preference heterogeneity on the share of EU soft-law instruments over time
| Published date | 01 September 2023 |
| DOI | http://doi.org/10.1177/14651165231162510 |
| Author | Asya Zhelyazkova,Markus Haverland,Rik Joosen |
| Date | 01 September 2023 |
| Subject Matter | Articles |
Legislating softly: The effect
of preference heterogeneity
on the share of EU soft-law
instruments over time
Asya Zhelyazkova
Department of Public Administration and Sociology, Erasmus
Universiteit Rotterdam, The Netherlands
Markus Haverland
Department of Public Administration and Sociology, Erasmus
Universiteit Rotterdam, The Netherlands
Rik Joosen
Institute of Public Administration, Leiden University, The
Netherlands
Abstract
This study analyses how preference heterogeneity across EU member states affects the
adoption of soft-law acts over time. On the one hand, high diversity in policy prefer-
ences is expected to increase the proportion of soft-law instruments because govern-
ments are less likely to agree to binding measures. Conversely, preference
heterogeneity could also decrease soft law due to the perceived threat of compliance
problems. We test these competing arguments using a dataset on all EU soft-law and
hard-law instruments adopted between 1967 and 2019. The results show that prefer-
ence heterogeneity increases the share of soft EU instruments. However, more past het-
erogeneity prompts EU legislators to decrease the proportion of softer measures in
areas that experience high levels of past non-compliance.
Keywords
EU, compliance, Council, preference heterogeneity, soft law
Corresponding author:
Asya Zhelyazkova, Department of Public Administration and Sociology, Erasmus University Rotterdam,
Burgemeester Oudlaan 50, Rotterdam, 3000 DR, The Netherlands.
Email: zhelyazkova@essb.eur.nl
Article
European Union Politics
2023, Vol. 24(3) 447–469
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/14651165231162510
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Introduction
There is a well-established view that more inclusive regimes impede co-operation due to
the resultant heterogeneity in preferences (Buchanan and Tullock, 1962). As regimes
expand their membership, the chance that at least one participant will not support
co-operative outcomes increases. In the case of the European Union (EU or Union), by
contrast, increased diversity has not impeded the continuous transfer of policy-making
powers from the national to the EU level. Since its establishment, the EU has consider-
ably expanded its involvement and authority in almost all policy areas. At the same time,
membership expansion has made member states’policy preferences more diverse. Thus,
empirical evidence on the co-evolution of the EU’s membership base and competences
generally dismisses the existence of a trade-off between ‘deepening’and ‘widening’of
supra-national systems (Leuffen et al.,2013: 21).
Nevertheless, the increasing heterogeneity in the EU could still make the EU’s legal
system less stringent. In addition to generally binding legislation, the EU also produces
soft-law instruments (e.g. recommendations, resolutions, guidelines, opinions and com-
munications) that lack supra-national enforceability and hence depend on the voluntary
application by the member states. A novel database on soft law shows that non-binding
instruments are on the rise in the EU (Cappellina et al., 2022). Soft law presents an
alternative to hard law in areas where member states are unable to agree on binding
legislation. In addition, the EU issues numerous communications and notices that com-
plement hard law as they aim to facilitate the implementation of EU law in domestic
settings.
A vast body of literature discusses the normative implications of soft law. Proponents
of these ‘flexible’modes of governance emphasise the lower legislative and sovereignty
costs in the adoption of non-binding instruments (Radaelli, 2003; Tholoniat, 2010;
Trubek and Trubek, 2005), whereas critics point out the danger of ineffective implemen-
tation and ‘race-to-the-bottom’scenarios in the absence of enforcement mechanisms
(Schäfer, 2006). Moreover, the increased use of soft-law instruments instead of
binding legislation threatens the legitimacy of the EU because they lack the certainty,
transparency and the legal protection provided by hard law, as the latter is adopted by
the classic Community method (Idema and Kelemen, 2006; Majone, 2009).
However, it remains unclear how growing differences in government policy prefer-
ences affect the development of soft law. This is an important gap, as the development
of non-binding instruments could explain how a supra-national system reacts to policy
conflicts and the nature of co-operation in a highly diverse Union. Moreover, research
shows that variation in member states’policy positions has empirical implications for
EU decision-making processes (König and Luig, 2012). This study addresses gaps in
the literature by theorising and assessing the effect of member states’preference hetero-
geneity on the evolution of EU soft law over time. Past research showed that coalition
formation in the Council of the EU (Council) is shaped by the composition of political
parties in national governments (Hagemann and Hoyland, 2008). Furthermore, political
contestation on substantive policy issues is largely captured by the left–right dimension
(Crombez and Hix, 2015: 488). Drawing on past research, we focus on preference
448 European Union Politics 24(3)
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