The Legal Effects of Soft Law: The Case of the European Pillar of Social Rights

The impact of the Court of Justice’s case law on (national) social rights is contentious. It is argued that the Court gives precedence to the economic rights of the Treaties, which leads to an erosion of national welfare regimes. The European Pillar of Social Rights (EPSR) as a ‘soft law’ instrument is said to do little about this imbalance. This paper argues for a cautious but more positive reading of the potential legal effects the instrument can produce. It shows how the Commission drafted the EPSR considering its later use by the Court, establishing it with a view to the case law regarding two previous, (initially) non-binding fundamental (social) rights catalogues: the Community Charter of the Fundamental Social Rights of Workers and the Charter of Fundamental Rights. This case law delivers several potential avenues through which the EPSR could potentially enfold legal effects. Methodologically, the paper is based on an empirical analysis of the EPSR’s adoption process based on 14 interviews and a comprehensive case law analysis of relevant cases of the Court of Justice. The findings are used to build a bridge between the legal status of the EPSR, previous fundamental (social) rights catalogues and the legal effects of social rights within the case law. These findings cater to three different strands of scholarship: the discussions on the relevance of social rights in the Court’s case law, the role of the Court within the EU decision-making process and a better understanding of soft-law making at EU level.