Soft law in EU administrative governance. Between administrative efficiency and legal certainty
Soft law in EU administrative governance. Between administrative efficiency and legal certainty

Summary/Abstract: Soft law is a distinct normative form within the administrative governance of the European Union. In the everyday practice of European institutions, formal regulations are not the only working tools. Alongside regulations and directives, administrations frequently resort to guidelines, recommendations, communications or interpretative documents, designed to facilitate the transposition of European rules at the national level and to ensure their more uniform application. Even if these instruments do not have binding legal force, their impact on the way in which public authorities and private operators carry out their activities is far from negligible. The starting point of the article is an apparent contradiction. Soft law can indeed improve the efficiency of European administrative mechanisms, but at the same time, it risks creating ambiguities from the perspective of legal certainty. The essential question that the author raises is whether the expansion of this type of instrument strengthens the capacity for administrative coordination or whether, on the contrary, it fuels legal uncertainty. The analytical approach combines the study of the doctrine with the examination of the decisions delivered by the Court of Justice of the European Union. It thus presents the concrete functioning of soft law within a governance system organised on multiple levels and shows how national courts, but also European institutions, resort to these instruments in their practical work. Three issues particularly attract attention: the extent to which national judges must take soft law into account; the consequences that their own guidelines generate for the EU institutions; and, last but not least, the limited possibilities of direct challenge before the European court, according to Article 263 TFEU. The conclusion reached is that soft law serves administrative efficiency only if certain institutional and legal guarantees are met. When it is vaguely drafted, when it is frequently amended or when it escapes judicial review, this type of law may erode legal certainty rather than strengthening it

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