Non-binding but useful? Exploring national judges’ motivations to use EU soft law

Following the Grimaldi jurisprudence of the CJEU, national judges are encouraged to take EU soft law into account in their decision making. Legal scholars have pointed out that in practice national judges are generally reluctant to recognize wider practical let alone legal effects of EU soft law (Knauff 2018), but they have nevertheless been found to frequently use non-binding instruments in a wide variety of ways in their decision making (Georgieva 2018, Hartlapp & Hofmann 2020). General patterns of judicial usage of EU soft law in national courts can be explained by a wide range of factors revolving around the type of instruments, legal mobilization and legal traditions of Member States. But why do judges at the individual level decide to use soft law? This paper explores how national judges’ motivations factor into recognition and usages of soft law during judicial decision making. To do so, it focuses on the policy fields of state aid and pharmaceutical regulation and draws on the substantive analysis of judgements and interviews with judges in France and Germany. First, the paper outlines types of judicial recognition of soft law during decision making. Judges’ perceptions of the status of soft law ranges from rejection to non-binding voluntary interpretation aid to binding norm. Judges’ attitudes can translate into various judicial usages of soft law. Effects of soft law can be ignored, rejected and accepted. In judgements, soft law can take the role of an object of court proceedings or as a mere aid for judges to interpret hard law. Codification in judgements ranges from citation to substantive discussion of nature and obligations. Second, the paper provides a framework to explain judicial decision making on or involving non-binding instruments. One set of factors focuses on experience and knowledge about EU law in general and about the nature and status of EU soft law in particular. Another set concerns judges’ motivation in delivering judicial outcomes and the factors of the perceived quality of instruments and of their usefulness in legal interpretation. Yet another set focuses on strategic motivations and the role of soft law in inter-institutional relations within the national judicial hierarchy and the multilevel system. Thirdly, the paper illustrates judges’ decision making on soft law in national courts and its central driving factors in Germany and France. In light of the increasing proliferation of EU soft law, studying motivations for judges’ decision involving EU soft law adds to our knowledge about the application EU law in national courts. Studying the usage of EU soft law by judges allows to understand its effects at the national level beyond the administrative arena. The paper is developed as part of a PhD project on the judicial usage of soft law in national courts.