When Soft Law Matters: Understanding Changes in EU Instruments and Domestic Contexts

“Whether it will be hard law or not, in any case, even if it’s soft law, it’s mandatory for everyone. You are bound to… comply, right?” (Interview, French civil servant, French health agency, 9.5.17): about ten years ago, such words from a top-level civil-servant in charge of eHealth policies (eHealth is a specific healthcare organisation in which ICTs are embedded) would have seemed particularly odd. Indeed, in 2004, when the first plan to introduce Electronic Health Records was adopted in France, European instruments were merely ignored. Yet, European “soft law” as regards eHealth was already substantial at this time. Or at least it was substantial enough to give birth to a wide initiative resulting in a “national eHealth strategy” in Austria in 2005. These two examples illustrate perfectly the issue when ones try to grasp the nature of soft law: beyond the legal definition of the term (Terpan, 2015), the effects of such norms rely heavily on the functions and meanings assigned by domestic actors. By analysing the cases of eHealth policies in the European Union, France and Austria, the aim of this paper is to understand how soft law may turn into hard requirements (or not) at the national level. In doing so, we will explore different hypotheses: does the hardening of soft law at the European level affect norms effectiveness at the domestic level? Is the presence of strong policy entrepreneurs necessary for soft law to have an effect on national policies and politics?