Introduction
The EU uses several legal instruments in the implementation of its objectives. Some of the legal instruments are binding, while others are nonbinding in nature.[1] One of the most applied non-binding legal instruments is soft law. As per recent literature, soft law has been among the most used legal tools to implement the EU’s objectives.[2] Scholars have defined Soft law as non-binding instruments that lack legal force but have the potential to influence the behavior of actors.[3] There has been a lot of debate from legal scholars as to the effectiveness and reliability of soft law in the EU.[4] Proponents of soft law claim that using soft law in the EU facilitates cooperation and unity among the member states. At the same time, the critics argue that soft law has resulted in legal uncertainty and the emergence of legal jurisprudence that can easily be ignored due to the lack of an enforcement criterion due to its non-binding nature.[5] This essay critically discusses the application of soft law in the EU. In doing this, the essay will compare the advantages and disadvantages of using soft law as compared to the application of directives as a source of law in the EU.
Soft Law in The European Union
The EU, as stated earlier, has increasingly turned to apply soft law to implement most of its objectives and achieve the desired outcomes within the member states. To ensure that some of the objectives of the EU are achieved, soft law instruments such as recommendations, guidelines, and declarations have been applied to set standards for the member states and all the players, including the business community in the European Union. The use of soft law has been praised for its flexibility and ease of implementing the objectives in the EU. As stated elsewhere in this paper, the issue of soft law has its ups and downs in equal measure. Proponents of soft law argue that soft law instruments provide a way to ensure cooperation and unity in the European union without necessarily applying and imposing binding obligations. They also argue that soft law is useful in regulating areas where the EU has no legal powers or jurisdiction to legislate, as it provides an avenue for informally achieving common goals.
On the other hand, critics have argued that the use of soft law poses a challenge of lack of legal certainty and that because they do not impose a binding obligation, there is a high chance that some member states or players in the EU can ignore them. They also add that soft law is not advantageous as it leads to legal fragmentation, as different member states may interpret the same instrument differently. Lastly, they also state that soft law is not effective as it can be used to circumvent the democratic process as they are not subject to the same scrutiny as traditional legal instruments.
In their work, Saurugger & Terpan (2021) argue that while soft law instruments offer flexibility and the ability to adapt to changing circumstances, their non-binding nature raises concerns about their effectiveness and legitimacy.[6] They state that as a result of the soft laws needing a more binding nature of law, they may create a lot of uncertainty in the law and thus leading to inconsistency in the interpretation and application of the law.[7] Additionally, it has been stated that the lack of the binding force of the law in so0ftlaw is a disadvantage as this can result in a lack of accountability and legitimacy since soft law, as stated earlier, lack a way to be scrutinized as compared to the traditional legal instruments.[8]
Soft law has been extensively used in different areas of life in the European Union. One area where soft law instruments have been widely used within the EU is in the field of environmental policy.[9] Concerning environmental policies and objectives of the EU regarding the environment, several guidelines, recommendations, and best practices have been applied to protect the environment and ensure equitable use of natural resources among member states. These recommendations range from those encouraging state parties to use environmentally friendly chemicals to those intended to protect the ozone layer, among others. All these recommendations, guidelines, and best practices aim to protect the environment for sustainable use by the current and future generations. [10]
One example of the application of soft law in protecting nature and the environment is the EU’s Birds and Habitats Directives. The directive requires that the member states establish protected areas to ensure that birds and other wildlife are protected and safeguarded from extinction. In order to achieve this, the directive is supplemented by soft law instruments such as guidance on the management of these protected areas.[11] These guidelines, despite being nonbinding in nature, instruct member states on how to implement the said directive and ensure that there is a uniform way of achieving the objective among member states. They also provide consistency in the implementation of the directives of the EU among member states.[12]
Despite the argument above on the importance of the application of soft law in environmental conservation, several scholars have argued that there are concerns as regain the effectiveness of soft law in environmental policy. Scholars have stated that the role played by these regulations and recommendations is minimal, as there is no mechanism for enforceability.[13] They argue that these soft laws must be more specific and thus provide sufficient guidance to the member states. They also have an issue with the non-binding nature as they claim this soft law instrument as this means there needs to be an enforcement mechanism to be applied.[14] To illustrate this point, let us consider the EU’s Water Framework Directive. This directive requires the member states to protect the quality of water by taking steps to protect water sources and the environment. The EU has issued EU guidance on assessing environmental impacts to guide the member states in doing this.[15] However, despite the use of these instruments, many member states still need to meet the objectives of the directive, and the quality of water in the EU remains a significant concern.
Apart from the environment, another area that has been a concern of the application of soft law is the field competition policy.[16] The EU competition law has been explained and clarified through various soft regulations, including guidelines, opinions, and notices to guide how competition law should be applied in practice.[17] The most recent example is the EU’s Guidelines on Vertical Restraints. These guidelines are aimed at providing guidance, especially when assessing the various commercial agreements between companies at different levels of the supply chain, such as agreements between manufacturers and distributors.[18] These guidelines are not legally binding but play an essential role in the interpretation and application of the law on competition within the EU and also facilitate consistency in the performance of the law by member states.[19]
Just as earlier stated, about the application of soft law in environmental policies, also in competition law, there are concerns about the effectiveness of soft law in competition law. It has been argued that there is a tendency that the use of soft law in competition law can be a loophole for the circumvention of democracy since soft laws lack the scrutiny that is available to the binding sources of law within the EU.[20] Moreover, as illustrated above, the non-binding nature of soft law instruments means that there is no effective mechanism for enforcement, which can create uncertainty and inconsistency in their application.[21] To illustrate this, let us consider, for instance, the EU’s Guidelines on the Application of Article 101 of the Treaty on the Functioning of the European Union, which prohibits anti-competitive agreements. There have been broad criticisms of this guideline on the grounds of the need for more clarity and the difficulty it poses when it comes to the consistency in the application of this law by the member states.[22]
The Use of Directives Under the EU Vis A Vis the Use of Soft Law
As stated earlier, in contrast to the soft laws discussed in this paper, directives are binding on member states and require them to take action to implement them. Due to their legal nature, directives can provide legal certainty and have mechanisms to ensure that member states take practical steps to ensure their implementation.[23] Despite the legal certainty and the availability of enforcement, directives have been criticized for needing to be more flexible and slow to implement. Also, some member states may be reluctant to implement them due to the cost implication and the fact that sometimes compliance outweighs their benefit.[24]
In terms of application, directives have been widely used in regulating different areas and fields within the EU. One of the areas where charges have been applied effectively is in the field of consumer protection.[25] The EU has issued various directives, such as the Unfair Commercial Practices Directive. This directive prohibits unfair commercial practices, and member states must take multiple legal steps to enforce the directive. As earlier stated, directives provide a high level of legal certainty and ensure that member states take action to implement them.[26] On the effectiveness of Directives as sources of law in the EU, several examples of directives have played a significant role in the implementation of various objectives of the EU. For instance, the Unfair Commercial Practices Directive has increased consumer protection across the EU. Member states have taken up the mandate to ensure that the directive is implemented and enforced to protect consumers against unfair commercial practices.[27]
Despite the successes discussed above, the use of directives in consumer protection has also raised concerns about their effectiveness. It has been stated that directives can be slow to implement, and member states may be reluctant to take action if they perceive that the costs of compliance outweigh the benefits. Compared to soft laws, directives could be more flexible, which may not fit well, especially when member states have different legal systems and cultural backgrounds.[28] Thus compared to the soft laws discussed earlier in this paper, the advantage of soft laws over directives lies in the flexibility and the nonbinding nature, which give the member states a choice to weigh whether or not to be bound by them.
Thus, compared with Directives, soft law instruments lack the legal force of traditional legal instruments such as regulations and directives, which can create uncertainty and inconsistency in their application. They are also non-binding and thus lack the force of law to ensure that the member states enforce them. This can lead to a lack of legal legitimacy and accountability as they are not subject to scrutiny from other traditional binding sources of law such as directives. Directives, on the other hand, provide a high level of legal certainty and ensure that member states take action to implement them. However, directives also have the disadvantage of being inflexible, and sometimes the cost of implementation may outweigh the benefits, thus making some member states shun being subject to them.
Additionally, as clear from this paper, both soft law instruments and directives have their place within the EU’s legal framework. They are applied depending on the circumstance and the needs that the EU has or intends to accomplish. Soft laws are essential, especially when the EU has an objective to accomplish but lacks the jurisdiction to legislate on the said matters. Directives, on the other hand, can provide sufficient legal certainty and have the mechanism to enforce compliance and thus can be applied when there is a need to pass a uniform law that requires the contribution of all parties. Hence, in choosing whether to use soft law or a directive, the EU will consider the existing circumstances and the goals intended to be achieved while considering the diversity between member states.[29]
This paper has already stated that the application of soft laws in the EU has raised questions about accountability and legitimacy due to the need for proper scrutiny before they are passed compared to directives and other binding sources of law. Due to this lack of accountability, there is a great tendency for them to be uncertain and need more consistency both in interpretation and application.[30] It has also alluded that they need an enforcement mechanism as they are not binding. The above factors compounded together make soft law a subject of criticism, with some arguing that it tends to be undemocratic. For instance, authors have criticized the use of delicate law instruments claiming that they can bypass the legislative process and impose their policy preferences on member states.[31] Soft law can also be used to prevent the unanimous agreement among member states, thus leading to inconsistency in the law’s application and interpretation, leading to tensions and disagreements among member states. For instance, The European Semester is an example of a soft law that has been criticized for imposing policy preferences on member states without following the democratic path.[32] Another example is the European Network of Ombudsmen, a network of national ombudsmen established in 1998 to promote good governance and respect for human rights within the EU. The network has also been criticized for lack of transparency and accountability.[33]
From the analysis in this part of this paper, it is clear that the EU uses soft law and directives under different circumstances to achieve varied objectives. They both have their shortcomings and also strengths when it comes to application and implementation. The significant difference is in the binding nature of the directives compared to the soft law, which is not binding. Enforceability and flexibility in terms of application are also major departure points between soft laws and directives used in the EU. However, they both play a role in the achievement of the legal objectives of the EU.
Directives in the European Union- a summary of the Advantages and Disadvantages
As has already been stated, directives are an essential legal instrument the EU uses to harmonize laws and regulations across the member states. The binding nature makes them a necessary part of the legal setting within the EU. Member states apply them in setting out the EU’s objectives while allowing a certain level of flexibility to give member states time and ability to transpose them into their domestic law. Thus, the bottom line is that the EU directives must recognize the diversity among member states regarding legal systems and administrative practices.
The primary role that directives play, as seen from the preceding discussion, is in terms of harmonization of the law within the EU. Directives provide different binding guidelines on how many states must respond to emerging issues and ensure that member states are part of the implementation of common goals of the EU.[34] In addition, directives give member states flexibility, allowing them time to adapt the directives to their national laws.[35] This is intended to ensure the uniform application of laws within the EU and thus reduces complexities in carrying out common objectives of the EU.[36]
Regarding disadvantages, it has been argued that the flexibility in implementation, as stated above, can lead to differences in laws among member states, thus creating legal uncertainty and fragmentation of rules within the EU.[37] Additionally, members are prone to choosing directives that favor them and ignoring the ones that do not select them. This lack of uniformity makes implementation a challenge, creating legal barriers to achieving common objectives of the EU.[38] Lastly, implementation of directives by member states often takes time and can vary among member states, resulting in delays in implementation.[39] An example is the implementation of the directive on the recognition of professional qualifications. Despite this directive being adopted in 2005, aimed at promoting the free movement of professionals in the EU, the implementation has taken time due to significant differences in how the member states have implemented the directive, thus causing a barrier towards the intended mobility of professionals within the EU.[40]
Conclusion
In a nutshell, the analysis in this paper has indicated that the role played by both soft laws and directives in the EU is immense when it comes to the implementation of the objectives of the EU. They both play an essential role in interpreting EU law and ensuring ease of application by member states. While it has been noted that soft rules are flexible and quick to adapt to the changing circumstances in the EU, they are nonbinding and lack a mechanism for enforceability. They are also not subject to enough scrutiny, thus posing a danger when it comes to the democratic application of laws in the EU. Directives, on the other hand, are binding and, therefore, necessary in promoting the harmonization of the laws within the EU. They also provide certainty and uniformity in the application of the law. However, they are inflexible, and thus they do not accommodate the different circumstances of member states which makes some member states selective in the application and implementation of the other directives.
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[1] Von der Leyen, U., 2019. A Union that strives for more. My agenda for Europe. Political guidelines for the next European Commission, 2024, p.2019.
[2] Wessel, R.A., 2021. Normative transformations in EU external relations: the phenomenon of ‘soft international agreements. West European Politics, 44(1), pp.72-92.
[3] Nugent, N. and Rhinard, M., 2019. The ‘political roles of the European Commission. Journal of European Integration, 41(2), pp.203-220.
[4] Wessel, R.A., 2021. Normative transformations in EU external relations: the phenomenon of ‘soft international agreements. West European Politics, 44(1), pp.72-92.
[5] Ibid.
[6] Saurugger, S. and Terpan, F., 2021. Normative transformations in the European Union: on hardening and softening law. West European Politics, 44(1), pp.1-20.
[7] Ibid
[8] Barbé, E. and Badell, D., 2020. The European Union and lethal autonomous weapons systems: united in diversity? European Union contested: Foreign policy in a new global context, pp.133-152.
[9] Sikora, A., 2021, January. European Green Deal–legal and financial challenges of climate change. In Era Forum (Vol. 21, No. 4, pp. 681-697). Berlin/Heidelberg: Springer Berlin Heidelberg.
[10] Ibid
[11] European Commission. (n.d.). The EU birds and habitats directives: For nature and people in Europe. Retrieved from https://op.europa.eu/en/publication-detail/-/publication/7230759d-f136-44ae-9715-1eacc26a11af#:~:text=The%20EU%20birds%20and%20habitats%20directives%20form%20the%20cornerstones%20of,to%20conserve%20Europe’s%20natural%20heritage.
[12] See note 7 above.
[13] Schoenefeld, J.J. and Jordan, A.J., 2020. Towards more rigid soft governance? Monitoring climate policy in the EU. Journal of Environmental Policy & Planning, 22(6), pp.774-786.
[14] Ibid
[15] European Commission. (n.d.). Water Framework Directive. Retrieved from https://environment.ec.europa.eu/topics/water/water-framework-directive_en
[16] Haucap, J., 2019. Competition and competition policy in a data-driven economy. Intereconomics, 54, pp.201-208.
[17] Vantaggiato, F.P., Kassim, H. and Wright, K., 2021. Internal network structures as opportunity structures: Control and effectiveness in the European competition network. Journal of European Public Policy, 28(4), pp.571-590.
[18] European Commission. (n.d.). Block Exemptions – Vertical Agreements. Retrieved from https://competition-policy.ec.europa.eu/antitrust/legislation/vertical-block-exemptions_en.
[19] Ibid note 18.
[20] Ibid
[21] Brook, O., 2019. Struggling with Article 101 (3) TFEU: Diverging approaches of the Commission, EU Courts, and five competition authorities. Common Market Law Review, 56(1).
[22] Consolidated version of the Treaty on the Functioning of the European Union, 2012 OJ C 326/47. Art. 101.
[23] Terziev, V., Petkov, M. and Dragomir, K., 2021. Sources of European Union law. Available at SSRN 3838631.
[24] Nugent, N. and Rhinard, M., 2019. The ‘political roles of the European Commission. Journal of European Integration, 41(2), pp.203-220.
[25] Rösner, A., Haucap, J. and Heimeshoff, U., 2020. The impact of consumer protection in the digital age: Evidence from the European Union. International Journal of Industrial Organization, 73, p.102585.
[26] Buettner, R., 2020, August. The impact of trust in consumer protection on internet shopping behavior: An empirical study using a large official dataset from the European Union. In 2020 IEEE Sixth International Conference on Big Data Computing Service and Applications (BigDataService) (pp. 66-69). IEEE.
[27] European Commission. (n.d.). Unfair Commercial Practices Directive. Retrieved from https://commission.europa.eu/law/law-topic/consumer-protection-law/unfair-commercial-practices-law/unfair-commercial-practices-directive_en#:~:text=Objective%20of%20the%20directive,-The%20objective%20of&text=It%20is%20the%20overarching%20EU,range%20of%20unfair%20business%20practices.
[28] See note 24 above
[29] van den Broek, O., 2021. Soft law engagements and hard law preferences: comparing EU lobbying positions between UN global compact signatory firms and other interest group types. Business and Politics, 23(3), pp.383-405.
[30] Knodt, M., Ringel, M. and Müller, R., 2020. ‘Harder’soft governance in the European Energy Union. Journal of Environmental Policy & Planning, 22(6), pp.787-800.
[31] Slominski, P. and Trauner, F., 2021. Reforming me softly–how soft law has changed EU return policy since the migration crisis. West European Politics, 44(1), pp.93-113.
[32] Council of the European Union. (n.d.). European Semester in 2023. Retrieved from https://www.consilium.europa.eu/en/policies/european-semester/2023/.
[33] Reif, L.C., 2020. The European Ombudsman: Strengthening Good Governance and Human Rights in the European Union. In Ombuds Institutions, Good Governance and the International Human Rights System (pp. 481-523). Brill Nijhoff.
[34] Zhelyazkova, A. and Thomann, E., 2022. ‘I did it my way’: customization and practical compliance with EU policies. Journal of European Public Policy, 29(3), pp.427-447.
[35] Frischhut, M., 2019. The ethical spirit of EU law (p. 157). Springer Nature.
[36] IBID
[37] Ibid. Note 41 above
[38] Terziev, V., Petkov, M. and Dragomir, K., 2021. Sources of European Union law. Available at SSRN 3838631.
[39] Ibid
[40] EUR-Lex. (n.d.). System for the recognition of professional qualifications. Retrieved from https://eur-lex.europa.eu/EN/legal-content/summary/system-for-the-recognition-of-professional-qualifications.html.
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