A hard core under the soft shell: how binding is Union soft law for member states?

Abstract:

With the proliferation of European Union soft law instruments since the nineties, the legal bindingness of these measures has been the subject of several studie. Indeed, various approaches (rationalist, constructivist, hybridity) have been deployed to define and delimit soft law from hard law, even arriving at a sophisticated taxonomy of soft and hard measures.

While these inquiries are of fundamental importance to formulate an ontology of European soft law, national courts and authorities implementing and applying soft law are faced with the more practical problem of the bindingness of these measures in a given case. Member states are often at a loss for which measures they are expected to apply and may ʻunexpectedlyʼ find themselves bound by certain soft law measures.

Since the jurisprudence of the Court of Justice of the European Union sheds some light on the legal obligations ensuing from the different types of European soft law, the present article is an attempt to categorize and determine the bindingness of such measures for national courts and authorities based on the relevant case-law of the Court.