Soft Law at the European Court of Justice – A Qualitative Vignette Study

Soft law is an indispensable part of EU action across many policy areas. While some forms of EU soft law (e.g., Commission guidelines in the field of competition law, see Stefan, 2013) have long taken hold in the case law of the European Court of Justice (ECJ), the guidelines and recommendations issued in the framework of the European Semester are rarely addressed in the case law (based on my own database research). Nevertheless, the scholarship has found that the European Semester, as a policy coordination mechanism that comprises economic, employment and social policies, entails the adoption of soft steering instruments which are backed by compliance-inducing mechanisms. Correspondingly, they have been ascribed a “hybrid soft-hard legal character” (De Witte, 2020). I define soft law acts as documents that have not been attributed binding legal force but may, nevertheless, have certain (indirect) legal effects. I contend that various factors shape the legal effectiveness of soft law, e.g., content, modes of adoption and the existence of compliance-inducing mechanisms. Furthermore, I claim that the perceived legitimacy of a soft law act accounts for various degrees of obligation attributed to it (Finnemore and Toope, 2001). Therefore, I consider that the European Court of Justice shapes the legal effectiveness of EU soft law and I aim to illuminate the views of individual Court members on the legitimacy of soft law as a tool in judicial decision-making. In my paper, I seek to answer the following research questions: Which role do soft law acts related to the European Semester play in the drafting of judgements and Advocate General (AG) opinions? Which factors impact the attitude of the members of the ECJ as regards soft law acts, e.g., as an interpretative aid or as a reference point in the course of contextual interpretative methods? For that purpose, I will design a qualitative vignette study, comprising three to four hypothetical cases (on the suitability of the vignette method to elicit participants’ opinions, perceptions and views, see Maguire et al, 2015). The case descriptions are inspired by actual Court cases that I have analysed in previous stages of my PhD project, albeit significantly altered. I will address them to (former) members of the Court in the course of conducting qualitative interviews and ask them to indicate their ruling. I will adopt a comparative approach by designing cases that are identical except for a single factor, e.g., the process in which a soft law act was adopted. Thereby, I aim to deduce the factors that contribute to the relevance of soft law to judicial decision-making. Using the vignette method to guide my semi-structured interviews shall allow for an open-ended discussion on the impact of various factors. The case descriptions shall provide the starting point for a more expansive discussion through which I, ultimately, aim to point to the judge’s discretion in ascribing legal effects to soft law and to illuminate internal decision-making processes.