research@hec - Issue #17 - (Page VI)
The Impact of Soft Law on the Courts
The EU can regulate not only through legally binding instruments such as treaties, regulations, and directives—or “hard law”—but also through the various recommendations, opinions, communications, notices, and guidelines issued by the European Commission, known as “soft law.” Contrary to the rules of “hard law”, those of “soft law” lack legally binding force—but not legal effects!
Oana Andrea Stefan completed her PhD in European Law at University College Dublin, and is an Assistant Professor in HEC’s Taxation and Law department. She holds an M.A. in European Studies at the College of Europe (Natolin), a Master’s in Law at the University of Paris I, and a law degree from the University of Bucharest. She has also worked as an advisor on European integration to the Romanian Minister of Justice.
THE INCREASING RECOURSE TO SOFT LAW INSTRUMENTS IN EUROPEAN COURTS European soft law dates to 1962, when the “Christmas notices” were issued, dealing with commercial agents and intellectual property. Yet the first mention of soft law in Courts occurred only in the 1980s, and has greatly increased over the last decade. Why so? • the context has recently been favorable to soft law: the White Paper on European governance in 2001 suggested that non-binding legal instruments should be coherently combined with hard legislation. • the issuing of two soft law instruments in competition law. The Guidelines on fines and the Notice on Leniency notice both directly shape the way that the Commission fixes fines or exonerates whistle blowers. Applicants often make recourse to these particular soft law instruments. Hence, “the growing number of soft law instruments augments the likelihood of litigants bringing arguments based on these type of measures,”
Recommendations and guidelines are widely used in EU governance. Oana Stefan areas that lie at the heart of the EU treaties. She sheds light on the legal level over time. mechanisms that are at stake, and changes in these mechanisms at the judicial
examines how they are used by EU courts in matters of competition and state aid,
HOW ARE SOFT LAW INSTRUMENTS USED? The Grimaldi case in 1989 was a turning point: Salvatore Grimaldi, the plaintiff, suffered from an occupational disease that wasn’t listed in the Belgian Fonds des maladies professionnelles, but was in the European list, along with a specific EU recom-
says Oana Stefan. Moreover, this tendency will probably soon reach national courts as well. Regulation 1/2003 calls on the courts of the Member States to handle European competition cases. This domain is thus no longer the exclusive domain of European Courts. The number of situations in which national courts are asked to grapple with European soft law is therefore likely to increase.
Soft Law Instruments Regularly Used in Competition and State Aid Case Law • In competition case law : the Guidelines on fines, the Leniency Notice, and the Annual Reports on Competition Policy issued by the Commission. • In state aid case law : the Guidelines on state aid to firms in difficulty, regional aid, de minimis aid, and aid to SMEs (small and mediumsized enterprises), as well, once again, as the Commission’s Annual Reports on Competition Policy.
Table of Contents for the Digital Edition of research@hec - Issue #17
Cover & Contents
How to Find Good Crisis Leaders before Trouble Strikes
Impact of Social Movements on Financial Institutions
European Law: The Impact of Soft Law on the Courts
The Economic Impact of Academic Entrepreneurship
research@hec - Issue #17
research@hec - Issue #17 - Cover & Contents (Page I)
research@hec - Issue #17 - How to Find Good Crisis Leaders before Trouble Strikes (Page II)
research@hec - Issue #17 - How to Find Good Crisis Leaders before Trouble Strikes (Page III)
research@hec - Issue #17 - Impact of Social Movements on Financial Institutions (Page IV)
research@hec - Issue #17 - Impact of Social Movements on Financial Institutions (Page V)
research@hec - Issue #17 - European Law: The Impact of Soft Law on the Courts (Page VI)
research@hec - Issue #17 - European Law: The Impact of Soft Law on the Courts (Page VII)
research@hec - Issue #17 - The Economic Impact of Academic Entrepreneurship (Page VIII)