Effects of EU soft law across the multilevel system
Final Report Abstract
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, such as recommendations, guidelines or communications that do not entail jurisdictional control, but produce important legal and practical effects. The starting point of the project was that we still know relatively little about the effects of this soft law across the EU multilevel system: What is the proportion of EU soft law in different policy areas and how has this developed over time? When and why are soft norms implemented at the domestic level? When and why does EU soft-law feed back into EU policy-making? The project addressed these questions through a combination of innovative theoretical and empirical research. It assessed the nature of EU soft law through a complete inventory of EU level instruments adopted in seven policy domains that differ in the character of EU policymaking and in the nature of the underlying policy-problem, over a 15 year period. It analysed the effect of sectoral and country specific factors on the usage of EU soft law in 50 individual case studies and their structured focused comparison. Insights were broadened through a survey in central administrations and courts. And it investigated the feedback effects of soft law implementation at supranational level. Some of the central project results can be summarized as follows: there is a greater variety of EU soft law instruments, than hard law instruments. Their number is growing over time and there are substantial differences between policy fields in absolute number as well as in the ratio to hard law that are explained by maturity and EU competences in a field as well as by the distribution of regulatory competences across actors, such as agencies. EU soft law is frequently used at the national level. Among different forms of usage, hard usage of a non-binding instrument seemed in particular need of explanation: soft law instrument characteristics such as reporting and enforcement incentivize usage. Yet, hard usage is also a frequent choice of actors that seek soft law implementation as a means to push their interests. Finally, usage at the national level feeds back into EU policy-making where a substantial share of EU soft law instruments hardens out over time. This raises important normative questions on the legitimacy of EU soft law and can affect the power dynamics between the Commission and the Member States. Overall, the project broadened the focus from a description of the nature and governance of soft law at the EU level to its usage at the national level and feedback effects across the multilevel system. In contrast to the single-case or small-N studies and the few systematic but outdated or biased large-N analysis that have characterized the field before, it delivered a systematic, comparative and longitudinal assessment of the nature and effects of soft law. What is more it successfully bridged the divide between legal and political science scholarship on the subject. This not only expands the empirical basis in a meaningful way. It also contributes to better understanding of soft law as part of the EU legal architecture, allows to investigate changes in EU governance in a crises ridden time and can contribute to improving effective EU problem-solving.
Publications
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Soft Law Implementation in the EU Multilevel System: Legitimacy and Governance Efficiency Revisited. Configurations, Dynamics and Mechanisms of Multilevel Governance, 193-210. Springer International Publishing.
Hartlapp, Miriam
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The use of EU soft law by national courts and bureaucrats: how relation to hard law and policy maturity matter. West European Politics, 44(1), 134-154.
Hartlapp, Miriam & Hofmann, Andreas
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Ever more soft law? A dataset to compare binding and non-binding EU law across policy areas and over time (2004–2019). European Union Politics, 23(4), 741-757.
Cappellina, Bartolomeo; Ausfelder, Anne; Eick, Adam; Mespoulet, Romain; Hartlapp, Miriam; Saurugger, Sabine & Terpan, Fabien
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Studying the EU soft law cycle: the role of domestic factors. Research Handbook on Soft Law, 304-318. Edward Elgar Publishing.
Ausfelder, Anne; Eick, Adam & Hartlapp, Miriam
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“The usage of EU soft law in national courts”, dissertation Freie Universität Berlin
Eick, Adam
