The Importance of Soft Law for EU Actors and Institutions: Looking into Four EU Policy Areas

With deepening European integration, the quantity and diversity of soft law increases. However, we know little about the importance of soft law in different European policy fields. This paper aims at mapping EU soft law in the policy areas of state aid, pharmaceutical regulation, CFSP, and food safety to provide a systematic and fine-grained understanding of soft law nature and development. The selected policy fields all contain a remarkable body of soft law, but they vary in their institutional structure and cooperation, decision-making processes, actor constellations, and interests involved. We may expect these factors to affect soft law in different ways. First, this paper analyses patterns of EU soft law in the four policy fields capturing the absolute distribution of soft law, the proportion of it in relation to hard law as well as the prevalence of certain types. Second, we trace developments of soft regulation over time. Third, the paper isolates potential causal factors for the usage of soft law – e.g. the presence of agencies, standardized enforcement, competencies or regulatory activity – and describes their co-occurrence. The comparison of policy fields will allow us to draw conclusions about the relevance of EU soft law in various institutional environments. Tracing developments of soft law over time will help to identify policy-specific changes in the EU legal framework and unique dynamics of policy fields. Our findings also contribute to our knowledge about actors during rule-making and enforcement, including regulatory agencies and courts. In sum, we expect that soft law significantly affects both the development of the EU legal framework and policy-specific dynamics. The analysis is based on a newly-created database of EU soft law in the period of 2004 to 2019 and the paper is part of a multi-annual, interdisciplinary project that studies the performance of the EU multilevel system through a longitudinal, comparative analysis of the nature and effect of soft law.