Hard and Soft Law in the European Union – I

Abstract

Since the 1990s, the EU seems to rely more and more on soft law. Soft norms have been created in new areas of competence working under the open method of coordination, or mostly based on strategies and guidelines. In other policy areas working under the traditional community method, hard norms have sometimes been softened by the introduction of imprecise rules and non-binding general objectives. In a time when EU integration is no more supported by a permissive consensus and member states are facing different forms of euroscepticism, using soft law instead of hard law is often seen as a compromise solution, enabling the development of the integration process while preserving national sovereignty. This challenges the traditional leading role of (hard) law in the European integration process. This use of soft law instruments has created many situations of interaction between hard and soft law. Soft law may conflict with hard law within a specific policy area, or on the contrary complement hard law through incentives instead of constraint. Soft norms are sometimes only temporary: actors at both EU and national levels can decide to transform them into proper hard law. Why are soft norms chosen instead of hard ones? What are the consequences of using soft norms on public policies and the EU integration process more generally? When and why is soft law transformed into hard law (legalization), and vice versa (delegalization)? This panel aims at studying these interactions and answering these questions, through different case studies related to economic governance, energy, gender equality and employment, health policy. Another panel on ‘hard and soft law in the EU’, dealing with other case studies’, will be scheduled during the same conference.

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