The differential use of soft law acts as a proxy of EU agencies power: a comparison among policy sectors

Non-binding norms (soft law) are widely perceived to be on the rise in regulatory governance, notably in the European Union. With the governance turn and ever more complex decision-making in Brussels legislation takes increasingly often the form of soft law. EU soft law comprises a relatively large group of legal instruments, from guidelines and recommendations, to opinions and communications, not all of them mentioned in article 288 TFEU. Tentative typologies of EU soft law acts have been proposed by the specialised literature based on aspects such as the category and function of the acts (Senden 2004), or, through a more stringent definition, on the degrees and forms of obligations and enforcement established by the acts (Terpan 2015). These classifications show that categorizing these instruments is far from being an accomplished task (Stefan et al. 2019). At the same time, the concept of agencification testifies of the contemporary rise of EU agencies as central actors that contribute to a delegated regulation of a growing number of EU policy sectors (Chamon 2016, Mathieu 2016). Linking the debates on the raise in production of soft law and agency formation at the EU level, this paper proposes to discuss how the use of soft law in the framework of agencies’ regulatory activities could inform on their relative power in the EU multilevel polity. We argue that the type of soft law produced by EU agencies is a valuable proxy to evaluate their regulatory role both towards Members States and in relation to alternative European regulators, such as the European Commission and the Council of the EU. To address this question the paper suggests a conceptual framework that characterises the triadic power relations between the core European regulators, the delegated European regulators (EU agencies) and the Member states. It does so relying on a new data set (EfSoLaw) that reunites for the first time scattered data on legal acts from various sources (EUR-Lex, DGs and EU agencies archives) proposing a refined manual coding of the evolution of EU soft law acts in seven different policy sectors over a fifteen years span (2004-2019). The data set is composed of more than 16 000 acts of hard and soft law in the policy sectors of police and judicial cooperation, common foreign and security policy, state aid policy, pharmaceutical regulation, food safety regulation, financial regulation and sustainable agriculture policy, and includes data stemming from all agencies involved in their regulation. The paper systematically compares the rate, the type and the function of soft law produced by European regulators. The results of this comparison are used to discuss the existing literature on the evolving power relationships in the EU political-administrative space (Egeberg and Trondal 2017). The paper is part of an ANR-DFG funded multiannual, interdisciplinary project providing a systematic empirical analysis of soft law in the EU multilevel system in two member states (France and Germany), seven policy fields and over a time span of fifteen years.