Soft law

‘Soft law’ is an expression used to denote agreements or decisions which pos­sess no formal legal force. Already an established feature of much internation­al decision-making (for example, in relation to the environment), soft law in the European Union may take the form of guidelines, codes of conduct, recommendations, declarations, resolutions and Inter-Institutional Agreements (IIAs). Some of these texts may possess considerable political or suasive force, even if they are not legally binding.

A decade ago, the European Commission, which enjoys the exclusive right of initiative in proposing EU law, indicated that it intended to make increasing use of soft law to pursue its policy goals. In particular, the Lisbon Strategy for economic reform, agreed in the European Council in March 2000, was to rely heavily on the open method of coordination (OMC) between governments, rather than the binding legal acts of general application that had, for example, underpinned the single market. In parallel, the Commission signalled its desire to promote the use of ‘self-regulation’ and ‘co-regulation’ – that is, agreements by or with third parties – as an alternative to formal legislation in specific sectors of the economy.

These twin approaches formed part of a wider ‘governance’ initiative, launched by the then Commission President, Romano Prodi, designed to reassert the authority of the Commission against the joint legislature – comprised of the Council of Ministers and European Parliament – in any area where the co-decision procedure applied. Suspicions were confirmed by the heavy emphasis which the Commission placed on engaging in more systematic consultation of affected interests, in advance of tabling proposals, with the convenient side-effect of making it more difficult for the Parliament in particular to criticise those proposals, which the Commission could justify on the basis that relevant ‘stake-holders’ had already given their support.

As its name implies, self-regulation involves economic or other actors coming together, often with Commission encouragement, to agree voluntarily on arrangements which might otherwise be subject to law. The IIA on Better Law-Making, agreed in December 2003, speaks of ‘the possibility for economic operators, the social partners, non-governmental organisations or associations to adopt amongst themselves and for themselves common guidelines at European level (particularly codes of practice or sectoral agreements)’. The deal struck between the Commission and mobile phone manufacturers in 2009-11 to standardise the sockets on chargers for the European market is a good illustration of self-regulation, and interestingly, one extracted under the explicit threat of legislation. Various codes of conduct in advertising and banking help explain why traditionally there has been relatively little EU legislation governing those sectors. In autumn 2011, the European Parliament challenged the intention of the Commission to rely on self-regulation among European banks, rather than legislation, to ensure that all EU citizens enjoyed an automatic right of access to a basic bank account in some form.

Co-regulation, by contrast, comprises an unusual amalgam of legislative and non-legislative components. It is defined as a ‘mechanism whereby [an EU] legislative act entrusts the attainment of the objectives defined by the legislative authority to parties which are recognised in the field’. Unlike a normal legal act, co-regulation agreements are binding inter partes (between the signatory parties), rather than erga omnes (in relation to all). Given the fear of the European Parliament, in particular, that co-regulation might reduce over time its ability (and that of the Council) to shape the legislative environment, the Commission was forced to concede important safeguards in respect of its use. These include a process for either the Parliament or the Council to recommend that any specific co-regulation agreement should be blocked, amended or replaced by a new legal act. Since it would be politically very difficult for the Commission to proceed in the face of hostility from either institution, it is perhaps hardly surprising that the Commission has, despite its original hopes, made little use of co-regulation in recent years.

September 2012

Copyright: Anthony Teasdale, 2012

Citation: The Penguin Companion to European Union (2012), additional website entry

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