Interactions through Soft Law in the EU Multi-level Space – the Cases of Competition Enforcement and Telecommunications Regulation

By comparatively examining the interactions of key national and supranational institutions enforcing EU competition law and telecommunications regulation, this paper argues that the Commission is making strategic/instrumental use of particular governance tools (soft law) to obtain enforcement outcomes that further its own vision for steering EU Economic Regulation. The success of this approach seems to depend on the institutional design of the policy field, which the Commission wants to dominate. Concretely, a field where the Commission has exclusive regulatory competence (competition) lends itself to smooth steering through soft law. Conversely, such steering in domains where the Commission is weaker by design (telecommunications) seems to meet national resistance. In the latter case, to achieve a position of power, the Commission is likely to convert its soft laws to EU-level hard law where possible. This tendency has materialized in the telecommunications domain with the delegated Regulation on EU-wide Voice Call Termination Rates (originally a recommendation) and could have further repercussions for upcoming regulation on digital markets. These findings have implications for the ‘sincere cooperation’ principle. While the said principle prescribes that ‘the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties’, our findings demonstrate that the Commission steadfastly expands its influence on national (regulatory) decisions, hence stretching the limits of the terms ‘mutual respect’ and ‘assistance’, while not necessarily acting beyond its competences. These findings are also relevant because they help to embed and explain instances of soft law (mis-)use as a factor influencing trust and distrust between the different levels of the EU multi-level structure. Generally, research into the instrumental usage of soft law by EU institutions could add a further explanatory variable to the already known factors that warrant trust and distrust in the EU edifice.