‘Soft’ International Agreements in EU External Relations

In the typology of instruments used to carry out EU external action, we usually distinguish between instruments that are adopted within the EU legal order (internal); and those that are adopted by the Union in the international order (international). These may be instruments adopted by the EU alone (autonomous), or these may be the result of agreement between the Union and a counterparty (conventional). These instruments can then be legally binding (hard law) or they may be committing in other ways (soft law). The present paper addresses the question of ‘transformation’ by focussing on situations in which the EU opts for conventional arrangements between the EU and third states or other international organisations that are not based on Article 216 TEU or on another legal basis in the Treaties. Soft law instruments may bear various labels, including Joint Communications, Joint Letters, Strategies, Arrangements, Progress Reports, Programmes or Memoranda of Understanding. Recent examples include the EU-Turkey ‘Statement’ on refugees or the EU-Libya Memorandum of Understanding concerning the observation of the 2017 presidential and representatives’ elections. Despite the frequent reference to these instruments as ‘non-legally binding’, questions arise as to the legal effects of the arrangements within the EU and the international legal order. To what extent does the distinction between ‘hard’ agreements and ‘soft’ arrangements matter in that respect? And, to what extent does the Union have a choice to either opt for a formal international agreement or to choose an informal arrangement (thereby perhaps bypassing certain procedural rules and guarantees.