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
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
List of Tables.
List of Figures.
List of Abbreviations.
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
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
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.
Note on Lisbon Treaty.
"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