Ever more soft law? Comparing binding and non-binding EU law across policy areas and over time - Archive ouverte HAL Access content directly
Conference Papers Year : 2021

Ever more soft law? Comparing binding and non-binding EU law across policy areas and over time


Non-binding norms, generally termed soft law, are widely perceived to be on the rise in international governance. With the governance turn and ever more complex decision-making this is also the case for the European Union. However, unlike many international organizations the EU can also adopt hard law. This paper aims to better understand the proportion of soft law compared to hard law in the EU, the characteristics of EU soft law and its place in the EU multi-level system. To address this question the paper defines soft law and conceptualizes its different types in the EU. It then presents a new data set: EfSoLaw. Complementary to previous databases created on EU hard law and to qualitative comparisons of EU soft law across policy fields, this data set reunites for the first time scattered data on legal acts from various sources (EUR-Lex, DGs and EU agencies archives) and proposes refined manual coding of EU soft law acts. The database covers seven different policy sectors over a fifteen years span (2004-2019). In this paper we look at 5175 EU wide applicable hard and soft law acts. The paper presents the main tendencies in the data set concerning the ratio of hard to soft law, the actors involved in soft law elaboration and other characteristics of EU soft law, such as its function, its relationship to corresponding hard law and its forms of enforcement. We find, that soft law outnumbers hard law and that the ratio of soft and hard acts has remained rather stable over the last 15 years. Soft law is not limited to the widely studied Open Method of Coordination, but spans a wide range of instruments. In our database opinions and agency regulatory acts are quantitatively most important, and so are agencies and the Commission as issuing institutions. While all soft law is by definition non-binding we find that acts differ surprisingly in the degree of obligation that is nevertheless attached, ranging from quasi binding State aid rules to non-existent enforcement in the majority of acts. We then use descriptive characteristics of EU soft law to suggest a six-fold typology that allows to formulate expectations on usage of and compliance with EU soft law.
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hal-03219262 , version 1 (06-05-2021)


  • HAL Id : hal-03219262 , version 1


Bartolomeo Cappellina, Sabine Saurugger, Fabien Terpan, Romain Mespoulet, Miriam Hartlapp, et al.. Ever more soft law? Comparing binding and non-binding EU law across policy areas and over time. Compliance with Soft Law: Assessing and Explaining Compliance with Legally Non-Binding Global and Regional Governance Instruments, Apr 2021, Hamburg, Germany. ⟨hal-03219262⟩
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