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Practice Area: European Community Law

Photo of the title: Soft Law in Court. Competition Law, State Aid and the Court of Justice of the European Union - 9041139974 - 9789041139979




Soft Law in Court. Competition Law, State Aid and the Court of Justice of the European Union
by: Oana Stefan
November 2012,  ISBN 9041139974
ISBN 13: 9789041139979
392 pp. Hardcover
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Add to Shopping Cart: Soft Law in Court. Competition Law, State Aid and the Court of Justice of the European Union - 9041139974 - 9789041139979

Drawing on a data set of 696 documents – competition and state aid judgments, orders and opinions of the European Courts, and Advocates’ General opinions referring to various soft law instruments – this detailed textual and doctrinal analysis investigates the way in which the EU Courts deal with soft law, how the normative status of these instruments is acknowledged, and how their effects are recognized. It reveals that several ‘champion’ instruments feature frequently in the case law: the guidelines on fines and the leniency notice in competition law, the state aid instruments on aid to be granted to enterprises in difficulty, regional aid, de minimis aid, and aid to be granted to SMEs – all of them having in common the fact that they regulate highly litigated areas. The analysis treats issues such as the following: ;

  • the pathway from judicial ignorance to judicial acknowledgement of soft law; ;
  • the judicial creation of legal ‘hybrids’;
  • the judicial review of soft law;
  • the potential use of soft law as a ‘sword’ or as a ‘shield’ in a court of law;
  • the distinction between legally binding force and legal effects;
  • how soft law can produce legal effects through the operation of general principles of law such as legitimate expectations, legal certainty, or human rights; and
  • how the Courts locate soft law on a strong constitutional pluralist background.

Although the analysis might appear to relate to a fairly narrow spectrum of EU law, in fact the interaction of soft law and legal principles reaches into many diverse areas of law, and increasingly so in the twenty-first century. Consequently, this ground-breaking book will prove immeasurably valuable to any practitioner, academic, or policymaker interested in how the EU Court is fulfilling once again its constitutionalizing role, even in an area traditionally lacking formalism and conventions: that of soft instruments of governance.




List of Tables. List of Figures. List of Abbreviations. Acknowledgements. Introduction. CHAPTER 1 Of Soft Law and the Courts. CHAPTER 2 The Geometry of Soft Law References. CHAPTER 3 The Soft Law Champions-Frequent Judicial References to Particular Instruments. CHAPTER 4 The Legal Status of Soft Law. CHAPTER 5 The Relationship Between Soft and Hard Law: Hierarchical Hybridity. CHAPTER 6 The Legal Effects Recognized by the Courts for Soft Law. CHAPTER 7 The Binding Effects of Soft Law. CHAPTER 8 A Principled Approach to Soft Law. Conclusion: Judicialization of Legal Hybrids in a Constitutional Pluralist Environment. APPENDIX 1 Mapping out Judicial References to Soft Law. APPENDIX 2 Research Keywords Table. APPENDIX 3 The Inclusion of Documents in this Research. APPENDIX 4 Soft Law Cases Versus Total Number. APPENDIX 5 List of Soft Law Instruments and of the Cases Mentioning Them. APPENDIX 6 Infrequent References to Soft Law. Bibliography. Note on Lisbon Treaty. Index.

"This very detailed work is a must read for academics and practitioners alike. This book provides clarity on the role of soft law. It places soft law above administrative practices of the Commission, as it is given more legal weight in the case law, but is also differentiated from hard law, which is above it in the hierarchy of legal sources. While there have been books and articles which have dealt with soft law in the past, the inclusion of the quantitative data on which the book is really sets it apart.

The author also identifies several further points for research such as the reconciliation of soft law with its optional use by courts; how national courts deal with soft law instruments; and remedies against the failure of national courts to take soft law into account. With the ever increasing number of soft law instruments, the author's examination of these further research topics would without doubt be a welcome addition to the literature on soft law in the EU in the future. Congratulations Oana Stefan for a work well done and our full encouragement with your further research."

World Competition, volume 37 issue 1 - José Rivas, Bird & Bird LLP





This book is a volume in a book series:
» European Monographs Series Set


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