Soft Law and the Enforcement of EU Law

Abstract

This chapter presents several challenges raised by the process of enforcement of European soft law. It briefly reviews various strategies to determine what enforcement could mean in a soft law context. The chapter looks at a series of examples which demonstrate how soft law is enforced through flexible, but also more coercive means, before concluding that ensuring the enforcement of soft law is done through hybrid methods which only reflect the hybridity of regulation in Europe. The chapter in addition shows how hybridity of regulation is reflected in the hybridity of enforcement mechanisms, with soft law itself becoming an enforcement tool for higher, binding norms, or values. Finally, this chapter reflects on whether, in the coercive enforcement of soft law, fundamental Rule of Law values are still preserved.

The Commission's Approach to Rule of Law Backsliding: Managing Instead of Enforcing Democratic Values?

“…Moreover, the Scoreboard, the Rule of Law Reports and the Commission's Rule of Law Recommendations within the Framework fall into the category of soft law instruments (Article 288 TFEU), which, although used to enforce hard law, are not binding and thus are problematic to enforce (Ştefan, 2017, 202 f.). This fact entails that the Commission can only hope that Member States are “inspired” by these publications and, as a result, carry out necessary reforms.…”

The Concept of Accountability in the Context of the Evolving Role of ENISA in Data Protection, ePrivacy and Cybersecurity

“…There is a trend in the European Union to an increased level of soft law instruments. 65 One source contends that they constitute 10 per cent of EU law 66 . In an EU context the term is usually reserved to instruments of the European Union-that is of the EU institutions consisting primarily of the Council and the Commission, such as recommendations and opinions 67 , although their use has grown to include instruments not mentioned in the TFEU such as notices, green and white papers, declarations, action programmes, codes of conduct and other acts.…”

Evading the Burden of Proof in European Union Soft Law Instruments: The Case of Commission Recommendations

“…The alignment between the interests of the EU and those of the Member States is generally presupposed. 21 It is true that, at least to some extent, the interests of the EU and those of the Member States should be aligned. For one, Member States might participate in the writing of Recommendations.…”

“…In a similar vein, Commission Recommendation 2014/1405/EU on strengthening the principle of equal pay between men and women through transparency at first lists all the documents and legislation in which the principle of equal pay is accepted; and then provides evidence that: ''Women in the Union still earn an average of 16.2% less than men for each hour worked (Eurostat 2011), in spite of their significant progress in terms of educational achievements and work experience''. 21 For example, in the Commission Recommendation 2013/112/EU on investing in children: breaking the cycle of disadvantage, the positive consequences mentioned include the following: ''The Europe 2020 Strategy has given new impetus to efforts to address poverty and social exclusion in the EU, by setting a common European target to reduce the number of people at risk of poverty and social exclusion by at least 20 million by 2020''. It is not clear if this target is the Member States' target or if it is imposed onto them.…”

“…recommendations are part and parcel of the current efforts to ensure better governance, being also more and more commonly acknowledged in litigation [21]. The other reason for studying Commission recommendations is connected to the important role played by these instruments in the EU legal order.…”