The Evolution of EU Soft Law in Financial Legislation and Sustainable Agriculture (2004-2019): What We Can Learn from Two Most Different Policy Fields

Considering the existence of a continuum ranging from non-legal norms to hard law, soft law is a category in-between. It is comprised of diverse instruments with the goal of either being an alternative to hard law or to supplement hard norms. EU policy fields usually combine both soft and hard law, however their respective proportion varies from one field to another. Furthermore, the distribution of hard and soft norms across sectors depends on specific factors such as the institutional structure, actor constellations and interest configurations. So far, this topic has drawn little interest in EU studies, thus we lack of empirical knowledge about the proportion of EU soft law and how it has developed over time. Relying on a newly created database, this paper seeks to empirically assess the nature of EU norms in the fields of financial regulation and sustainable agriculture. The paper focuses on the evolution of soft law in relation to hard law over time (15 years between 2004 and 2019) for each of the policy fields. This allows a mapping of the absolute proportion of soft and hard law. We argue that a process of legalisation occurs when soft norms become binding, and delegalisation occurs when hard norms are replaced by soft ones. Sometimes, the combination of soft and hard norms can lead to a form of legal hybridity. Finally, the paper develops hypotheses on why actors choose either hard or soft law. We expect soft law to differ across sectors. Following a legalistic logic, considering that norms best serve citizens and democracy when they score high in obligation, precision and delegation, we expect actors to push for a hardening out of soft law. Following an effectiveness logic, where soft norms are seen as solving problems by adapting to specific needs, we expect soft norms to prevail. Considering institutional and political dimensions, the hypotheses are based on the intergovernmental or supranational character of EU policy-making and on the diffuse or concentrated configuration of interests within each field. In areas characterised by intergovernmental decision-making and concentrated interests, such as financial legislation, soft law is more likely to result from difficulties to agree on hard law. On the contrary, sustainable agriculture is on a supranational decision-making and diffuse interests dimension, hence we expect soft law to reflect innovation in governance. Part of a broader research project that aims to understand the effects of EU soft law across the multilevel system, this analysis is helpful for further qualitative and comparative research across policy sectors and countries.