SOFT LAW IN EUROPEAN COMMUNITY LAW This book offers the first systematic investigation of the phenomenon of soft law within the framework of the EC (the first pillar of the EU), and its use by the European Commission and Council of Ministers It focuses upon how soft law fits into the Community legal system, and how it is used and, in particular, how it relates to Community legislation Differentiation of the Community instruments, including the instruments of soft law, is often thought to enhance the effectiveness, legitimacy and transparency of the Community This book asks whether soft law indeed provides a satisfactory alternative to legislation from this perspective and, if so, in what cases and under what conditions Furthermore, the author asks to what extent the use of soft law implies good governance, and throws fresh light on this very heterogenous phenomenon, by looking at frequently used instruments in many different areas of Community law, such as competition law, state aid, environment, social policy etc — in the process identifying their different characteristics, aims, functions and legal effects What emerges is that the conditions under which soft law is used may be problematic in relation to increasing the legitimacy, effectiveness and transparency of Community action This is a work which will interest legal practitioners confronted with the use of soft law in an increasing number of sectors and academics interested in the vexing question of how the increased use of soft law can be justified in a Community legal order built upon the rule of law It is also critical of developments taking place within the framework of the European Convention and the proposed European Constitution, and goes beyond the immediate problems of soft law to touch upon issues such as competence, legal protection, division of powers between the EC and the Member States, institutional balance, lawmaking by the Community Courts, the scope of Community legal principles and the influence of soft law on the progressive development of both Community and national law Volume in the series, Modern Studies in European Law Modern Studies in European Law Volume 1: Soft Law in European Community Law Soft Law in European Community Law Linda Senden Department of European and International Public Law, University of Tilburg OXFORD AND PORTLAND OREGON 2004 Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA © Linda Senden 2004 Linda Senden has asserted her right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work Hart Publishing is a specialist legal publisher based in Oxford, England To order further copies of this book or to request a list of other publications please write to: Hart Publishing, Salters Boatyard, Folly Bridge, Abingdon Rd, Oxford, OX1 4LB Telephone: +44 (0)1865 245533 Fax: +44 (0) 1865 794882 email: mail@hartpub.co.uk WEBSITE: http//:www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN 1-84113-432-5 (hardback) Typeset by Olympus Infotech Pvt Ltd, India Printed and bound in Great Britain by TJ International, Padstow, Cornwall Acknowledgements This book is based on the doctoral research I conducted on soft law in European Community law and its relationship to legislation, defended at Tilburg University, the Netherlands in May 2003 It is a slightly adapted version of the thesis edition (published by Wolf Legal Publishers, May 2003) I have approached the issue of soft law from the angle of its use as an alternative to legislation Such a use was proposed in the 1992 Edinburgh European Council Conclusions, based on the premise that this would contribute to enhancing the legitimacy, effectiveness and transparency of Community action, the biggest challenge faced by the European Union today At the same time, I have also tried to provide more insight into the different manifestations of Community soft law and its legal effect In performing this research, I am greatly indebted to many people First and foremost, I wish to thank my supervisor, Sacha Prechal, for her excellent supervision and continuous encouragement and for giving me the necessary elbow-room to complete it Without her I would never have ventured upon this challenging project I am also very grateful to Professors P Kapteyn, L Hancher, EMH Hirsch Ballin, A de Moor-van Vugt and K Mortelmans, for being members of my thesis-examining committee and for their comments and suggestions I also owe much gratitude to all the student-assistants of the Department of European and International Public Law who over the past years have helped me to gather and list all the material, which in the case of soft law Acts has not always proven to be an easy task I mention in particular Christophe Paulussen, who has been of great assistance to me at highly critical moments by being very flexible as to time and place of work, even delivering papers to me at home I also appreciate very much the help I have had from Janneke Kohlen and Marleen Janssens in preparing the manuscript for the sales edition of my book I have been very fortunate to find myself at the Department of European and International Public Law among colleagues who have been very supportive and helpful during the whole research process and completion of this book Over the years, many of them have become more than simply colleagues I wish to mention in particular Elisabetta Manunza, who also has a particular talent for ensuring that working from home is a less solitary affair But also thanks to Laura, Willem, Pierre, Conny, Helen, Saskia, Petra, Leigh, Mieke and all the others: the Department is an inspiring, warm and fun place to work Beyond the Department, I want to acknowledge, in particular, the work done by Janet Taylor, who had a very difficult job correcting my English I have very much appreciated her ceaseless efforts to improve the manuscript Needless to say, any remaining obscurities and mistakes are to be blamed on myself I thank my family and friends for their supportive and understanding friendship It seems that now this project has truly come to an end I wish to dedicate this book to my parents, for their constant and generous support in all ways; to Marcel, without whose support and patience it would not have been possible for me to complete this book; and to Julia, for being such a welcome and pleasant distraction to my academic work and for putting everything in the right perspective Linda Senden Tilburg, May 2004 Table of Contents Table of Cases Table of Soft Law Acts Abbreviations xvii xxxi lv Part I Lawmaking in EC Law Setting the Scene 1.1 Introduction 1.2 The Context of EC Legislation 1.3 Core Characteristics of the EC Legislative Process 1.4 The Crisis in EC Legislation 1.4.1 National Developments 1.4.2 Excessive Quantity 1.4.3 Lack of Quality 1.5 The Challenge: Enhancing the Effectiveness, Legitimacy and Transparency of Community Action 1.6 Meeting the Challenge: A New Legislative Policy 1.6.1 EC Legislation: No Longer ‘Terra Incognita’ 1.6.2 Less and Better Legislation 1.6.3 More Modes of European Governance 1.7 Community Soft Law: An Alternative to Legislation? 1.7.1 The Use of Soft Law in EC Law 1.7.2 The Central Question and its Dual Purpose 1.7.3 Definition and Framework of the Analysis Sources of EC Law and EC Legislation 2.1 Introduction 2.2 Classification into Primary, Secondary and Tertiary Sources of Law 2.3 Primary Sources 2.3.1 The EC, ECSC, EAEC Treaties and Related Acts 2.3.2 Intermezzo: The Necessity of Additional Sources of Law 2.3.3 General Principles of Law 2.3.4 International Treaties Concluded by the EC 9 10 11 13 16 16 17 20 23 23 25 29 33 35 37 37 38 39 41 viii Table of Contents 2.4 2.5 2.6 2.7 Secondary Sources 2.4.1 Legislation 2.4.1.1 The Concept of Legislation in EC Law 2.4.1.2 The Purposes of Harmonisation and Unification 2.4.1.3 Regulations 2.4.1.4 Directives 2.4.2 ‘Individual’ Decisions 2.4.3 Sui Generis Decisions 2.4.4 Relations between the Secondary Sources Tertiary Sources ‘In-Between’ Sources 2.6.1 Agreements Concluded between the Member States 2.6.2 Case Law Conclusions Guiding Principles for Legislation 3.1 Introduction 3.2 A Broad Conception of Legitimacy: Democracy and Rule of Law 3.3 Democratic Legitimacy Requirement 3.3.1 Formal Democratic Legitimation of the Decision-Making Process 3.3.2 Questions Arising in Relation to Soft Law 3.4 Rule of Law Requirement: The Principle of Conferred Powers 3.4.1 Principle of Legality and Instrumental Function of the Legal Basis Requirement 3.4.2 Principle of Legal Protection and Guarantee Function of the Legal Basis Requirement 3.4.3 External Division of Powers: Competence to Act in Abstracto 3.4.4 Internal Division of Powers: Institutional Balance and Loyal Cooperation 3.4.5 Principle of Democracy 3.4.6 Questions Arising in Relation to Soft Law 3.5 Rule of Law Requirement: The Principle of Subsidiarity 3.5.1 External Exercise of Powers: Competence to Act in Concreto 3.5.2 Criteria for Application 3.5.2.1 Non-Exclusive Competence 3.5.2.2 Effectiveness and Efficiency 3.5.2.3 Democratic Legitimacy 41 41 41 45 46 48 52 53 54 55 56 56 58 59 61 63 66 66 68 68 69 72 73 74 77 78 79 79 82 82 83 84 Table of Contents ix 3.6 3.7 Rule of Law Requirement: Good Governance 3.6.1 Principle of Proportionality 3.6.1.1 Proportionality as a Judicial and Legislative Doctrine 3.6.1.2 Form and Intensity of Community Action 3.6.1.3 Questions Arising in Relation to Soft Law 3.6.2 Principles of Effectiveness and Equality 3.6.2.1 Implications at Community and National Levels 3.6.2.2 Questions Arising in Relation to Soft Law 3.6.3 Principle of Transparency 3.6.3.1 Openness and Accessibility: Article 255 EC 3.6.3.2 Giving Reasons Requirement: Article 253 EC 3.6.3.3 Publication and Notification Requirement: Article 254 EC 3.6.3.4 Principle of Legal Certainty 3.6.3.5 Questions Arising in Relation to Soft Law Conclusions Part II 86 86 86 89 92 93 93 96 96 97 99 100 101 102 103 Community Soft Law Instruments Introduction to the Concept of Soft Law in EC Law 4.1 Introduction 4.2 Terminology 4.3 A Definition of Soft Law 4.4 Heterogeneity of the Phenomenon of Soft Law 4.4.1 Two Lines in Legal Writing 4.4.2 Problems Connected with this Heterogeneity 4.5 Prerequisites for Soft Law to Function as an Alternative to Legislation 4.6 A Functional Classification of Soft Law Instruments 4.6.1 Three Main Categories 4.6.2 Three Main Functions 4.7 Approach and Delimitation Categories and Functions of Soft Law 5.1 Introduction 5.2 Preparatory and Informative Instruments 5.2.1 Preparatory Instruments 5.2.1.1 Green Papers 107 109 111 113 113 115 117 118 118 119 121 123 123 124 124 x Table of Contents 5.3 5.4 5.5 5.6 5.2.1.2 White Papers 5.2.1.3 Action Programmes 5.2.2 Informative Instruments 5.2.2.1 Informative, Interpretative and Decisional Communications 5.2.2.2 Inter-Institutional Communications 5.2.2.3 Purely Informative Communications 5.2.2.4 Individual Communications Interpretative and Decisional Instruments 5.3.1 Administrative Rules in EC Law 5.3.2 Interpretative Communications and Notices 5.3.3 Decisional Notices and Communications 5.3.4 Decisional Guidelines, Codes and Frameworks Formal Steering Instruments 5.4.1 The Term and Concept of Steering Instruments 5.4.2 Points of Departure: Article 249 EC and Legal Writing 5.4.3 Commission Recommendations 5.4.3.1 The (Legal) Nature of the Rules 5.4.3.2 Purposes and Functions 5.4.3.3 Adoption, Legal Basis, Publication and Notification 5.4.4 Council Recommendations 5.4.4.1 The (Legal) Nature of the Rules 5.4.4.2 Purposes and Functions 5.4.4.3 Adoption, Legal Basis, Publication and Notification 5.4.5 Commission Opinions Non-Formal Steering Instruments 5.5.1 Introduction: Acts of the Member States in Different Capacities 5.5.2 Council Conclusions 5.5.3 Council Declarations and Member State Declarations 5.5.4 Joint Declarations and Inter-Institutional Agreements 5.5.5 Council Resolutions 5.5.6 Council and Commission Codes of Conduct or Practice 5.5.7 Mixed Conclusions, Declarations and Resolutions Conclusions 5.6.1 Do the Instruments Examined Indeed Constitute Soft Law? 126 128 132 132 133 135 136 138 138 143 148 153 155 155 158 162 162 165 171 173 173 176 183 186 189 189 193 197 200 203 211 216 219 219 520 Bibliography THÜRER (1990) — D Thürer, The Role of Soft Law in the Actual Process of European Integration, in O Jacot-Guillarmod and P Pescatore (eds), L’avenir du libre-échange en Europe: vers un Espace économique européen? 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CMLRev, vol 38 (2001), no 3, p 615 YATAGANAS (2001) — X Yataganas, Delegation of Regulatory Authority in the European Union: The Relevance of the American Model of Independent Agencies, Paper provided by Harvard Jean Monnet Chair in its series Jean Monnet Working Papers, no 03/01, Harvard, (2001) Z ULEEG (1971) — M Zuleeg, Die Kompetenzen der Europäischen Gemeinschaften gegenüber den Mitgliedstaaten, in G Leibholz (ed) JöR, neue Folge, Band 20, JCB Mohr (Paul Siebeck), Tübingen, (1971), p Index Action programmes 128–132 areas 129 competence to adopt 310–311 formal adoption 131 identification of legal basis 130 implementation 129 nature of 128–129 pre-law function 129 publication 131–132 soft law, whether 219–220 Administrative rules in EC law 138–143 classification 140–141 Commission, use by 141 conception 138, 140 De Minimis Notice 142 ‘decisional’ 140–141 see also Decisional notices and communications ‘interpretative’ 140–141 see also Interpretative communications and notices function 139 instruments used 142–143 legal status, uncertainty on 139 terminology 139–140 Case law source of EC law, as 58–59 Codes 153–155 see Decisional guidelines, codes and frameworks Codes of conduct 211–216 see also Codes of practice Codes of practice 211–216 adoption process 215–216 aims 211–212 competence to adopt 303–306 Commission and Council 211–216 external nature 211–212 implementation 213 internal nature 212 legal basis 215 legal nature 212–213 para-law function 214 political engagement 213–214 pre-law function 215 publication 216 reasons for use 214 Commission opinions 186–189 competence to adopt 187–188, 295 conformity of national measures with EC law, on 186 decision making process, in context of 187 EC Treaty, and 187–188 legal nature 187 non-compliance with Community law, on 186–187 post-law function 188–189 pre-law function 188 publication 189 Commission recommendations 162–173 see also Recommendations adoption 171–173 alternative to legislation, as 170 closer cooperation or coordination, aimed at 166 competence to adopt 295–301 external nature 162–163 flexible nature of 168–169 functions 165–171 future legislation, and 163–164 harmonisation, aimed at 166–168 implementation 164–165 influencing behaviour 162 internal nature 163 legal basis 171–173 legislative provisions, and 164 legal nature 163–165 notification 171–173 outside parties, directed towards 162–163 para-law function 169–170 publication 171–173 purposes 165–171 supplementing existing Community legal framework 170–171 para-law function 169 Commission Report for the Reflection Group 14–15 Communications different types 132–133 decisional see Decisional notices and communications individual 136–138 informative 132–133 inter-institutional 133–135 interpretative see Interpretative communications and notices 524 Index purely informative 135–136 Community meaning 30 Community executive, indirect legal effects for 401–436 area of competition law 420–436 duty of consistency 431–434 equality principle 422–428 implications of self-binding effect 434–436 legitimate expectations 428–431 limitations of self-binding effect 434–436 area of staff cases 402, 411–420 discretion of administration 412 equal treatment principle 413–414 equality principle; Louwage formula 411–415 legitimate expectations 415–417 patere legem quam ipse fecisti 415–417 area of state aid 420–436 duty of consistency 431–434 equality principle 422–428 legitimate expectations 428–431 limitations of self-binding effect 434–436 area of subsidies 420–436 duty of consistency 431–434 equality principle 422–428 implications of self-binding effect 434–436 legitimate expectations 428–431 limitations of self-binding effect 434–436 decisional acts 403 effectiveness, and 410 essential procedural requirements, basis of 417–418 implementation, questions of 402–404 implementing powers shared by Commission and Member States 403–404 implications of self-binding effect 418–420 legitimacy, and 410 legitimate expectations, principle of 415–417 limitations of self-binding effect 418–420 patere legem quam ipse fecisti 415–417 principles of good administration, and 407–410 development 409–410 infringement 408–409 recognition of self-binding effect of self-imposed rules 404–410 Dutch legal system 405 French administrative law 406 German law 405 national law, approaches in 404–407 UK law 405–406 Community legislature, indirect legal effects for 321–345 compliance with soft law by 340–345 discretion 340–343 NIFPO case 340–343 obligation on basis of general principles of law 343–345 implementation issues, for 322–324 ‘transposition’ 323 transposition of soft law by 325–340 obligation on basis of general principles of law 331–340 Community loyalty 336–338 conflicting principles 331–332 effectiveness 336–338 equal treatment 336–338 institutional balance 334–336 legal certainty 338–340 transparency 338–340 obligation on basis of treaty or secondary legislation 326–331 legal basis provisions 327–328 ‘prohibiting’ legal basis 330 re-regulation of state aid law and policy 332–334 Community soft law see also Soft law abuse of 27–28 alternative to legislation, as 23–32 annulment, of 268–270 central question 25–29 Community Courts, and see European Court of Justice; Court of First Instance Community executive, and see Community executive Community legislature, and see Community legislature Community legal system, and 4–5 concept of 107–122 democratic legitimacy, and 26 designation 23 EC Treaty, and 24 Edinburgh European Council conclusions effectiveness, and 26–27 evaluation 32 examination of rules 31 fashionable use of good governance, and 25, 28 legal effect 27, 31–32 legal rights and obligations 31–32 meaning 3–4 Index national courts, and see National courts national executive, and see National executive national legislature, and see National legislature non-existence, of 268–270 origin positivist approach 29–30 preference for 23 problematic use of proposed increased use 24 results aimed at 31 rule of law, and 28 suspicious use of 27–28 terminology 109–111 transparency, and 29 uniform application of Commmunity law, and 27 use in EC law 23–25 Community loyalty and sincere cooperation, principle of Declaration on Article 10 EC 77, 286–287, 306 personal scope 76–77 substantive scope 95, 336–337, 348–352, 399, 442–446, 465, 468–470, 489, 491 Competence to adopt soft law 291–320 see also Community soft law; Soft law; Conferred powers, principle of; Duty to adopt soft law explicit powers 296–298, 479 formal steering instruments 295–303 Commission, competence of 296–301 Council, competence of 301–303 implied powers 302–303, 308–309, 312–318, 479–480 interpretative and decisional instruments 312–318 Commission 312–318 discretionary powers of Commission 314–315 guidelines 315–316 staff cases 314 non-formal steering instruments 303–06 Commission, competence of 304 Council, competence of 304–306 preparatory and informative instruments 306–311 Commission, competence of 306–310 Council, competence of 310–311 relevance 292–295 conferred powers, and 292–294 Concerted approach see Cooperation; Coordination Conclusions see also Council conclusions mixed 216–218 525 Conferred powers, principle of 64, 68–79 applicability of 295–320 Article 5, EC Treaty 74 Article 7, EC Treaty 74 balance between tasks and competences of institutions 75 choice of correct legal basis 73 effet utile, notion of 72 European Court of Justice, and 71–72 external division of powers 73–74 functions 64, 68, 291 general legal basis 71 guarantee function legal basis 72–73 instrumental function legal basis 69–72 internal division of powers 74–77 legal basis in Treaty 70 see also Legal basis principle of democracy, as 77–78 principle of legality, as 69–72 principle of legal protection, as 72–73 questions arising in relation to soft law 78–79 specific legal basis 70–71 trias-politica 75 Consistency, duty of 431–434 Consistent interpretation, duty of 366, 387–392 Constitutional Treaty for Europe, draft 22, 44, 55, 82, 453, 461, 469, 481, 484, 498, 500–501 Coordination, see also Commission recommendations; Council recommendations; cooperation notion of closer coordination 166, 178–180, 460–461 open method of coordination 22, 90, 163, 179, 223, 461 Cooperation, see also Commission recommendations; Council recommendations; coordination closer 166, 460–461 notion of 178–180 sincere see Community loyalty and sincere cooperation, principle of specific duty of 273–280, 284–287, 352–356, 442–446, 465–466, 469–470, 477, 501 the ‘Hague Fisheries Resolution cases’ 352–356, 442–446 Council conclusions 193–197 aims 194–195 areas in which adopted 195–196 competence to adopt 303–305 contents 194 increased use of 196–197 legal basis 196 nature 195 526 Index preparation and elaboration of future Community action 196 publication 197 purpose 195 Council declarations 197–200 addressees 197–198 competence to adopt 303–306 nature 198–199 legal basis 200 reasons for use of 199–200 substantive scope 199 Council recommendations 173–186 see also Recommendations addressees 174 adoption 183–186 competence to adopt 301-303 contents 175 convergence of social protection objectives and policies 180 cooperation or coordination of national policy and objectives 178–180 establishment of common or concerted approach 177 form 174–175 functions 176–183 harmonisation, and 177–179 implementation 175 legal basis 183–186 legal nature 173–176 notification 183–186 para-law function 182 post-law function 181–182 pre-law function 181 publication 183–186 purposes 176–183 structure 175 telecommunications sector 176–177 time limit for compliance 175 Council resolutions 203–211 addressees 204–205 adoption procedure 210 competence to adopt 303–305 contents 204 expansion of use 203–204 functions 207–208 legal nature 205–206 para-law function 208–209 post-law function 209–210 pre-law function 208 publication 210–211 purposes 206 subsidiarity principle, and 206–207 Court of First Instance see also European Court of Justice dual approach to interpretative Commission acts 370–371 Decisional guidelines, codes and frameworks 153–155 area of state aid 154 Decisional notices and communications 32–133, 148–153 area of competition law and policy 148, 150–151 competence to adopt 312–318 draft versions 152–153 external nature 148–149 guidelines, as 149 imposition of obligations 150 instruments of administrative practice and policy, as 150–151 intended legal status 149–150 internal nature 148 nature of 148–149 post-law function 152 purposes 151–152 simultaneous adoption with legislation 152 substantive scope 150 Decisions 52–54 binding effect 52–53 function of 53 individual 52–53 sui generis 53–54 internal nature of 53–54 Declarations, see also Council declarations mixed 216–218 Democratic legitimacy requirement 66–68 direct election of MEPs 66–67 evaluation of use of soft law in the light of 482–488 European Parliament’s decision-making powers 67 formal democratic legitimation of decision-making process 66–67 meaning 66 questions arising in relation to soft law 68 Deregulation meaning 17 Directives 48–52 European Convention proposal: ‘European framework laws’ 44 ‘indirect’ legislation, as 51–52 legally binding force 49 national implementation measures 49–50 discretion 50 requirements 50–51 nature of 48–49 precise and detailed nature of 50 ‘two-stage’ legislation, as 51–52 Duty to adopt soft law 300–301, 303, 309–310, 318 Index EC legislation, see also Legislation; Secondary sources of EC law and legislation; Constitutional Treaty for Europe, draft codification 19 compromise aspect concept of 41–45, 59 context 5–7 core characteristics 7–9 crisis in 9–13 definition 42 deregulation 17–18 detailed nature of 12 directives 48–52 drafting 17–18 enlargement of EU, and 6–7 excessive quantity 10–11 White Paper on Internal Market 10–11 flexibility 16 fragmented nature of 11–12 harmonisation 45–46 harmonisation technique high-compromise nature of 12 influence of Member States 7–8 Integrationsrechtsetzung 45–46 internal inconsistency 13 lack of quality 11–13 legal writing 18 less and better 17–19 modes of European governance 20–22 national developments 9–10 deregulation self-regulation 9–10 new policy 16–22 no longer ‘terra incognita’ 16 proposals to introduce concept of legislative act 42–44 purposes 45–46 rationalisation 19 reclassification 44 redefinition 44 regulations 46–48 re-regulation 19 simplification 17 step-by-step process unification 45–46 welfare state, and Effectiveness 93–95 Community loyalty, and 95 EC legislation, of 94 effet utile 72, 364 implications at Community and national levels 93–96 legal scope of soft law on the basis of 336–338, 410–411, 440–442 meaning 93 national level, at 94 527 questions arising in relation to soft law 96 Effectiveness of Community action evaluation of the use of soft law in the light of 224–231, 494–495 Equal treatment, see Equality, principle of Equality, principle of meaning 95–96 legal scope of soft law on the basis of 336–338, 411–415, 422–428, 440–442 Essential procedural requirements legal scope of soft law on the basis of 417–418 Euro-scepticism emergence of 13 European Convention proposals, see Constitutional Treaty for Europe, draft European Court of Justice, indirect legal effects for 363–384 see also Court of First Instance Community loyalty, and 399 confirmatory interpretation 397 division of powers, and 399 duty of consistent interpretation 366, 387–392 general implications of use of soft law as interpretation aid 393–397 broadening scope of competences 395–396 influence on lawfulness of Community and national law 394–395 institutional balance, and 399 interpretation methods 364 interpretative Commission instruments, role assigned to 367–370 interpretative declarations, role assigned to 374–380 conditions 376–377 favourable approach 374–377 unfavourable approach to Member State declarations 377–378 interpretative power of national courts, and 398 lawmaking role 363–365 mandatory interpretation aid 366, 391–392 possible roles for soft law 365–366 power of interpretation 363–365 preparatory and steering instruments, role assigned to 380–384 favourable approach 380–383 part of intention of legislature 382–383 restrained role, plea for 365 scope of Grimaldi obligation 387–392 role assigned to interpretative Commission instruments 367–374 528 Index actual ‘covering’ of Commission’s interpretation 372–373 limited legal authority 368 restrictive approach 367–370 role of soft law in interpretation of Community law 366–384 task of interpretation 363–365 teleological interpretation 364 voluntary interpretation aid 365–366 European governance 20–22 modes 20–22 new forms 21–22 open method of coordination 22 European Union crisis of legitimacy 14 Frameworks see Decisional guidelines, codes and frameworks General principles of law primary source, as 39–40 Good administration, notion or principles of 407–410 Good governance 86–102 effectiveness, 93–95 see also Effectiveness equality 95–96 proportionality, 86–93 see also Proportionality transparency, 96–102 see also Transparency Green Papers 124–126 areas 125 COM documents, published as 126 competence to adopt 306–310 follow-up 125 interested parties 125 nature of 124 primary objective 124 soft law, whether 219–220 Guidelines, see Decisional guidelines, codes and frameworks; Coordination Guiding principles for legislation 61–104 application 62 Article EC 61 democratic legitimacy, see Democratic legitimacy requirement effectiveness, see Effectiveness good governance, see Good governance legal certainty, see Legal certainty, principle of legitimacy, see Legitimacy pressure for recognition 65 rule of law see Rule of law rule of law requirements 68–102 soft law, and 62 subsidiarity principle see Subsidiarity principle transparency see Transparency Harmonisation Commission recommendations, and 166–168 Council recommendations, and 177–179 legislation 45–46 soft law, and 460–461 ‘Incidental’ legally binding force 248–282 agreement, on basis of 270–282 bilateral acts 271 explicit provision 272–273 multilateral acts 271 scope of legally binding force 280–282 specific duty of cooperation 273–282 any instrument, whether 265–266 assessment of approach of Court 282–289 inter-institutional agreements 284–287 pros and cons 287–289 prospects for legally binding ‘soft law’ 282–284 Court ‘test’ summarised 266–267 Court ‘test’ complete, whether 261–265 decision-making procedure 263–264 giving reasons requirement 261–263 notification 264–265 publication 264–265 exercise of competence, and 259–261 implications 267–270 implications of lawful hard law in clothing of soft law 267–268 implications of unlawful hard law in clothing of soft law 268–270 intention of legally binding force 251–258 context 254–255 notification 257–258 previous history 254–255 publication 257–258 terms 251–254 underlying reasons 256 wording 251–254 new or existing legal effects 258–259 obscurities 261–266 scope 267–270 specific duty of cooperation 273–282 ‘discipline’ 278 state aid 279 undertaking as third party 274 substance, on basis of 248–270 substantive approach to soft law 249–251 refutable presumption 249 review of legality 250–251 Index Indirect legal effects, see Community executive; Community legislature; European Court of Justice; national executive; national legislature; national courts Individual communications 136–138 Informative communications 132–133 purely informative 135–136 Inter-institutional communications 133–135 adoption 134–135 areas 134 legal basis 135 objective 134 scope 134 Informative instruments 132–138 soft law, whether 219–220 Institutional balance 74–77 case law of European Court of Justice 75–76 Community loyalty, and 76–77 evaluation of the use of soft law, and 468–471, 479, 481, 488–490, 501 role of European Parliament in decision-making process 76 scope 334–336 Inter-institutional agreements 200–203 competence to adopt 305–306 legal basis 203 legal nature 202, 284–287, 466 procedure for adoption 203 rules of conduct 201 International treaties primary source, as 41 Internet publication of soft law acts 496 Interpretative communications and notices 132–133,143–148 aims 143–144 clarification of legal situation 146–147 competence to adopt 312–318 concrete contents to undetermined provisions, giving 144–145 explanation of rules 144 inference of new rules 145–146 initiative of Commission 147 legal nature 146 rules of general and normative nature 145 subjective elements 144 Interpretative and decisional instruments 138–155 soft law, whether 220 Joint declarations 200–203 form 202–203 legal basis 203 529 legal nature 202 procedure for adoption 203 rules of conduct 201 scope 201–202 Judiciary, indirect legal effects for 361–399 see also European Court of Justice; Court of First Instance; National courts Law, meaning of 3, 35–37, 112 Legal basis see also Conferred powers, principle of ‘enabling’ 327–328 ‘in-between’ 327–328 ‘obligating’ 327 ‘prohibiting’ 330–331 Legal certainty, principle of 61–62, 101–102, 338–340, 409 Legal effect 235–290 see also Legally binding force case law 239–240 conceptualisation 235 delimitation of de facto effect 241–242 dual concept in EC Treaty 236–239 explicit stipulation 237–238 ‘incidental’ 238 indirect 239–240 no derogation from hard law 243–246 case law 244–245 secondary community law 245 terminology 242–243 umbrella concept, as 235–243 Legality 478–482 see also Conferred powers, principle of Legally binding force 235–290 see also Legal effect ‘incidental’, 248–282 see also ‘Incidental’ legally binding force ‘inherent’ 246–248 conditions for 247 differences in scope 247–248 formal approach to hard law 246–247 Legislation guiding principles for, 61–104 see also Guiding principles for legislation; EC legislation; Secondary sources of EC law and legislation Legitimacy 62, 63–66 broad conception 63–66 democracy and rule of law 63–66 democratic 63 evolution of understanding 63 rule of law, 64–66 see also Rule of law Legitimacy of Community action 530 Index evaluation of the use of soft law in the light of 224–231, 477–493, 501–502 Legitimate expectations, principle of 101–102, 340, 415–417, 428–431, 440–442, 465, 475–476 Member State declarations 197–200 Mixed conclusions 216–218 Mixed declarations 216–218 Mixed resolutions 216–218 National courts, indirect legal effects for 361–362, 384–393 role of Community soft law mandatory interpretation aid 391–392 national competence 384–385 scope of Grimaldi obligation 387–392 broad reading, arguments for 387–389 restrictive reading, arguments for 389–391 shift in case law: Grimaldi case 386–387 National executive, indirect legal effects for 436–449 application and enforcement of soft law competition law 437–440, 448–449 effectiveness 440–442 equality 440–442 legitimate expectations 440–442 specific duty of cooperation 442–446 state aid 437–440, 448–449 Notices, see Decisional notices and communications; Interpretative communications and notices National legislature, indirect legal effects for 345–358 transposition of and compliance with soft law Article 10, EC 348–352 ‘Hague Fisheries Resolution Cases’ 352–356 national competence 346–348 obligation on basis of specific duty of cooperation 352–356 possible restrictions 356–358 Securitel scandal 345–346 Open method of Coordination, see Coordination Opinions 56, see also Commission opinions recommendation compared 161–162 Patere legem quam ipse fecisti, principle of 415–417, 474, 476 see also Legitimate expectations, principle of Preparatory instruments, 123–138 soft law, whether 219–220 Primary sources of EC law and legislation 37–41 EAEC Treaty 37–38 EC Treaty 37–38 ECSC Treaty 37–38 general principles of law 39–40 fundamental rights 40 non-discrimination 40 international treaties 41 necessity of additional sources of law 38–39 negative integration 38–39 positive integration 38–39 Proportionality, principle of 86–93 Article 5, EC 87–88 broad discretionary powers, and 89 context in which arising 87 form and intensity of Community action 89–92 choice of instrument 91, 107, 114, 309, 327–328, 330–331, 334–337, 347, 356–359, 468, 470, 484, 489, 500, 502 harmonisation measures 91 ‘measures’, scope of 91–92 non-binding measures 90 judicial and legislative doctrine, as 86–89 principle of good administration, as 409 Protocol on subsidiarity and proportionality 309, 334–338, 483–484, 489, 500 questions arising in relation to soft law 92–93 three-stage test as judicial doctrine 88–89 Recommendations, 56 see also Commission recommendations; Council recommendations addressees 161 characterisation 159 legal nature 160 ‘no binding force’ 159 opinion compared 161–162 Regulations 46–48 administrative 48 definition 46–47 direct applicability 47–48 European Convention proposal: ‘European laws’ 44 legally binding force 47 Resolutions, see also Council resolutions mixed 216–218 Rule of law 64–66, 103–104 Index Article 220, EC Treaty 33–34 classical conception 64–65 conferred powers, principle of 64, 68–79 see also Conferred powers, principle of democratic and social conception 64–65 governing per lege 64 governing sub lege 64 legitimacy, and 64–66 requirements 66, 68, 79, 86 Secondary sources of EC law 41–55 decision 52–54 see also Decisions directives 48–52 see also Directives general nature of 55 hierarchy 54–55 legislation 41–52 see also (EC) legislation regulations 46–48 see also Regulations relations between 54–55 Self-binding effect of soft law, see Community executive, indirect legal effects for Simplification meaning 17 Soft law, see also Community soft law action programmes 219–220 see also Action programmes adoption process, democratic influence in 486–488 formalisation 488 interpretative acts 487 non-formal steering instruments 487 alternative terminology 110–111 classification 457 competence to adopt, see Competence to adopt soft law criticisms of term 109–110 definition 111–113 delimitation 121–122 democracy, implications for 477–498 democratic influence on choice of instrument 483–486 consultation process 484–485 third parties, and 485 democratic legitimacy 482–488 consultation documents 483–484 European Parliament, role of 482, 485 requirement to state reasons, and 485 differentiating effects 494–495 evaluation 454–502 external division of powers 491–493 differences between Commission’s and Council’s way of acting 492–493 harmonisation process, and 491 531 functional classification of instruments 118–120 interpretative and decisional instruments 118–119 preparatory and informative instruments 118 steering instruments 119 three main categories 118–119 three main functions 119–120 Green Papers see Green Papers harmonisation, and 460–461 heterogeneity of phenomenon 113–117, 456–457 instruments aimed at establishing new Community rules or principles 114–115 problems connected with 115–117 reasons for choice of particular instrument, and 116 two lines in legal writing 113–115 umbrella terms or instruments 116 hybrid system of instruments 455–457 indirect legal effects 467–477 competition law 477 executive level 474–477 interpretation aid 470–474 judicial level 470–474 legislative level 467–470 obligation to transpose 467–468 principle of Community loyalty and sincere cooperation 469–470 role of decisional acts in legal practice 475–476 staff cases 474–475 state aid 477 internal division of powers, and 488–491 application of subsidiarity and proportionality principles 489 institutional balance 490–491 interpretative and decisional instruments 220 legal effect 461–477, see also Legal effect; Legally binding force incidental 462–466 action for annulment, and 464–465 characterisation of act at issue 465 Council recommendations 464 intention of creating new legal effects 463 requirements 463–464 state aid 465–466 indirect 467–477 inherent 462–466 legality: competence 478–482 Commission 479–480, 481 conferred powers, principle of 478–482 532 Index Council recommendations 480–481 limited alternative to legislation 455–461 formal steering instruments 459–460 interpretative and decisional instruments 459 non-formal steering instruments 460 preparatory and informative instruments 458–459 objections to term 109–110 para-law function 120, 457–461 possible abuse of 490 post-law function 120, 457–461 pre-law function 120, 457–461 prerequisites to function as alternative to legislation 117–118 proposals for change 498–502 application of subsidarity and proportionality test 502 clarification of legal effect 501 classification of instruments 500–501 more consistent use of instruments 499–500 procedural changes with view to increasing legitimacy and transparency 501–502 rationalisation of instruments 499 redefinition of instruments 500–501 rationalisation, proposal for 497 rule of law, implications for 477–498 satisfactory alternative to legislation, whether 121–122 ‘shadow area between law and politics’ 111 shortcomings of Community legislative process 454 three core elements 112 top-down legislation, and 454 transparency, and 495–498 contributing to 495–498 Internet, and 496 obscuring 495–498 uniformising effects 494–495 variety of instruments 497 White Papers, see White Papers Sources of EC law and legislation 33–59 agreements concluded between Member States 56–58 autonomous agreements 57 complementary agreements 57 executive agreements 57 international law agreements, as 58 Article 249, EC Treaty 35–36 case law 58–59 classification 35–37 concept of law 3, 35-37, 112 concept of legislation 59 defective system 59 hierarchy 36–37 ‘in-between’ sources 56–59 incomplete system 59 meaning 35 primary, 37–41 see also Primary sources of EC law and legislation reclassification in European Convention and draft Constitutional Treaty rule of law, and 33 secondary 41–55, see also Secondary sources of EC law and legislation tertiary 55–56, see also Tertiary sources of EC law and legislation State aid 332–334 Steering instruments 155–218 see also Commission recommendations; Council recommendations; Recommendations acts of Member States in different capacities 189–193 European Council acts 192 legal nature of 191 ‘other positions’ 190 RGM acts 190–192 additions to contents of existing acts 157 alternative to legislation 221–224 Article 249, EC Treaty 158–162 ‘no binding force’ 159–160 concept 155–158 effectiveness of Community action, and 224–231 formal 155–189 soft law, whether 220–221 functions 157–158 legitimacy of Community action, and 224–231 meaning 156 non-formal 189–218 soft law, whether 220–221 primary objective 156–157 soft law, whether 219–221 term 155–158 transparency of Community action, and 224–231 Subsidiarity principle 79–86 ambiguity 85–86 Article 5, EC Treaty 80 criteria for application 82–86 Edinburgh conclusions 84 efficiency 83–84 effectiveness 83–84 democratic legitimacy 84–86 dual nature 85–86 external exercise of powers 79–81 meaning 80–81 non-exclusive competence 82 Index Protocol on subsidiarity and proportionality 309, 334–338, 483–484, 489, 500 relationship between Community and Member States 81 role in Treaty amendment discussions 81 scope 327–328, 330–331, 334–337, 347, 356–359, 468, 470, 484, 489, 500, 502 Tertiary sources of EC law and legislation 55–56 meaning 55–56 opinions 56 recommendations 56 soft law, and 55–56 Transparency 96–102 accessibility 97–99 elements of 97 giving reasons requirement 99–100 Article 253, EC Treaty 99–100 importance of 97 legal certainty, principle of 101–102 notification requirement 100–101 533 openness 97–99 publication requirement 100–101 questions arising in relation to soft law 102 Transparency of Community action evaluation of the use of soft law in the light of 224–231, 495–498, 501–502 Transposition of soft law, see National legislature; Community legislature Unification of legislation 45, 46 White Paper on European Governance 15 White Papers 126–128 adoption procedure 127–128 areas 127 competence to adopt 306–310 COM documents, published as 128 Green papers compared 127 nature of 126 objective 126–127 soft law, whether 219–220