Soft law and Member States’ compliance with EU law

Soft law is a weaker form of law. Its rules are not legally binding. Nevertheless, like law, soft law may steer human behaviour. Take the following example: Public authorities may instal a sign at a public playground which states that on this playground smoking is prohibited. They may as well merely recommend, on this very sign, not to smoke for the sake of childrens health. Then smoking is not prohibited by the authorities, but undesired. This would be an expression of soft law. Both the prohibition and the recommendation are reasonable, and thus both of these utterances may achieve a high degree of compliance. Thus, soft law may entail effects which are very similar to those of law. Soft law is not only adopted by states, but also by the European Union (EU). This book focusses on the creation of soft law by the EU and its bodies. It aims at improving the understanding of EU soft law as a quasi-legal phenomenon. It addresses the question under which circumstances the EU Treaties that is the EUs constitution allow for the adoption of soft law by EU bodies. The book also explores the effects and the purposes of EU soft law. EU law is subject to review by the Court of Justice of the European Union. In which form and to which extent does this also apply to EU soft law, which, by definition, does not oblige its addressees? EU law is binding upon the EUs Member States (MS). Most of EU law becomes effective because the MS (and their authorities) apply it. For example, the EU requires that the effects of certain public and private projects on the environment need to be assessed and has adopted rules, accordingly. However, the assessment itself is to be performed by the national authorities of the MS. Where MS do not, or not correctly, apply EU law, the effectiveness of EU law is in danger. Therefore, it is possible that the European Commission sues the MS at issues before the Court of Justice of the European Union. In addition to that, there is a number of procedures which allow EU bodies to otherwise pressurise MS when they fail to correctly apply EU law. In the course of these procedures, the EU body in charge, for example the European Commission, may address soft law to the MS at issue. This soft law may take the form of a recommendation that the MS failed to correctly apply a certain provision of EU law and that it should henceforth apply it in a different correct way. The MS addressed may follow this recommendation for different reasons. It may not have known that it applied EU law incorrectly. Or it may have known, but now wants to avoid being sued before the Court. Or it may just find the approach recommended by the Commission more convincing than the approach it has applied so far. This book addresses a number of these procedures and examines whether they are in compliance with the EUs constitution.