FRAL - Programme franco-allemand en Sciences humaines et sociales

Effects of EU soft law across the multilevel system – EfSoLaw

Effects of EU soft law across the multilevel system

The project studies the effects of EU soft law in order to improve our understanding of the performance of the EU multi-level system. EU law influences governments and has direct consequences for citizens. With the governance turn and increasingly complex decision making in Brussels, law is increasingly taking a “soft” form.

When, why and how does soft law produce effects on the EU multilevel system?

The term “soft law” refers to a number of different instruments such as recommendations or guidelines that do not have legal enforcement power but have substantial political and legal effects. Nevertheless, we know little about why member states or EU institutions use soft or hard law in policy-making: What is the share of soft versus hard law in specific policy areas? When and why is EU soft law implemented in nation states? When and why does national implementation lead to feedback effects at the supranational level? Against the background of these questions we analyze from a legal and political science perspective whether, when and why soft law influences the performance of the EU multi-level system.

The project analyses the characteristics and developments of soft law over 15 years (2004-2019) in seven selected policy areas, which differ systematically in terms of their underlying policy problem and decision-making rules at the European level. Methodologically, the project relies on three successive processes. Firstly, the project creates a new database of EU legislative hard and soft law acts covering a 15 years span (2004-2019) and seven policy sectors. Secondly, case studies are selected from the database and they are developed through expert interviews for each policy sector. To identify factors and processes that facilitate or limit the effects of EU soft law at the national level in France and Germany, as well as its potential hardening at the European level. Thirdly, these results are combined with a survey of central administrations and courts.

The partial results obtained to date allow us to answer the first research question on the proportion of EU soft law in various policy sectors and through time. The first result stemming from the EfSoLaw database is that the elaboration of legislative acts has been constant during the 2004-2019 period in the sectors we studied. A mean of 1053 acts are produced by the EU per year, with a minimum of 854 in 2004 and the maximum of 1247 acts in 2013. In this period there has been a steep increase in soft law adopted. Between 2004 and 2006, around 86% of European acts were hard law (regulations, directives, decisions). At the end of the period, between 2017 and 2019, the proportion of soft law (recommendations, guidelines, resolutions, conclusions, opinions…) has grown to almost 35% of the acts, with a constant growth between the two periods. Therefore , we can quantify a 148% growth in the production of soft by the European Union institutions between 2004 and 2019 in the sectors we analysed which is a major result for our project.

As the research is still ongoing, the prospects concern the results of the case studies in France and Germany and the survey with public administrations. These two research steps will allow to answer the research questions on the effects of soft law on the EU multilevel policy system.

Once published, the database will allow legislative, judicial and policy scholars to study European and national policy processes involving the adoption, implementation, and compliance to EU Law.

This project aims to advance understanding of the performance of the EU multilevel system through a longitudinal analysis of the nature and effect of soft law, beyond a crisis-centred research puzzle. EU law affects governments and populations and has direct influence on the lives of citizens. With the governance turn and ever more complex decision-making in Brussels legislation takes increasingly often the form of soft law. The term captures instruments such as recommendations, guidelines or communications that do not entail jurisdictional control, but produce important legal and practical effects. Yet, we still know relatively little why member states and EU institutions chose either soft or hard law to govern. What is the proportion of EU soft law in different policy areas? When and why is EU soft law implemented at domestic level? Once implemented, when and why does it feed back into EU policy-making? Employing lenses of contemporary legal scholarship on soft law and political science insights on public policy analysis, this project investigates whether, and if so when, why and how soft law affects the performance of the EU multilevel system.
The project is important because it addresses a central topic of political systems, namely the relationship between law and politics. In delivering a systematic, comparative and longitudinal assessment of the nature and effects of this soft law, the project goes beyond existing accounts that either optimistically stipulate the potential of soft law for effective policy making or pessimistically point at its narrow legal relevance, the creation of uncertainties and lack of accountability often based on static accounts of a legal phenomenon.
The project is original in that it will analytically distinguish hard and soft law in light of two elements: the binding nature of the norm and the enforcement mechanism that ensures compliance with the norm. To our knowledge, this project will be the first to also causally analyse the effects of soft law across policy sectors and countries, including dynamic feedback into EU policy-making.
The project is ambitious in its scope and design. First, it will assess the nature of EU soft law through a complete inventory of EU level instruments adopted in eight policy domains that differ in the character of EU policy-making and in the nature of the underlying policy-problem, over a 15 year period. Second, it will analyse the effect of sectoral and country specific factors on the implementation of EU soft law through a survey in central administrations and courts as well as causal analysis and structured focused comparison of 64 domestic implementation processes. Third, it will investigate the feedback effects of soft law implementation at supranational level. Finally, the project makes it possible to employ a multidisciplinary perspective and country expertise by combining a team of German and French political science and legal scholars.

Project coordinator

Madame Sabine Saurugger (Pacte Laboratoire de sciences sociales)

The author of this summary is the project coordinator, who is responsible for the content of this summary. The ANR declines any responsibility as for its contents.

Partner

FU Berlin Freie Universität Berlin
German University for Public Administration, Speyer
Hertie School of Governance/Jacques Delors Institute
Universität Wien
University of Copenhagen
Central European University
IEP Bordeaux Institut d'études politiques de Bordeaux
CESICE CENTRE D'ETUDES SUR LA SECURITE INTERNATIONALE ET LES COOPERATIONS EUROPEENNES
PACTE Pacte Laboratoire de sciences sociales

Help of the ANR 220,299 euros
Beginning and duration of the scientific project: August 2019 - 36 Months

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