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

Abstract

The evolution of EU administrative law generates peculiar governance processes in the entire EU policy space, EU Economic Law being a prime example. By comparatively examining the interactions of the key national and supranational institutions enforcing EU competition law and telecommunications regulation, this paper argues that the Commission is making strategic use of particular governance tools (soft law instruments and good governance principles) to obtain enforcement outcomes that further its own vision for steering EU Economic Regulation. Furthermore, the success of this approach seems to be related to the institutional design of the policy field, which the Commission wants to dominate. In particular, a field where the Commission has exclusive regulatory competence (competition) lends itself to steering through soft law. Conversely, steering through soft means in domains where the Commission is weaker by design (telecommunications) seem to fail. In the latter case, to achieve a position of power, the Commission is likely to exert pressure on the Council to adopt hard law at EU level – a development we currently observe with the December 2020 Commission proposal for a Digital Markets Act. Overall, the Commission, as the umpire of internal market integration, strategically uses soft law to secure a position of dominance in the domain of EU Economic Regulation.

Keywords: soft law, competition law, regulated industries

JEL Classification: L40; K21