Effects of European Soft Law at National Administrative Courts

Abstract

The aim of this paper co-written with Judge András Kovacs and her research assistant, Anna Forgacs, is to analyze the extent to which soft law issued by the European Union Commission is ‘hardened’ in administrative court procedures at a Member State level. We will explore whether national courts recognize the legal effects of soft law, and whether national courts can properly deal with the coexistence of soft and hard law. References to EU soft law instruments at national level are most common in administrative law cases, especially in cases involving competition law, regulated markets, environmental law, and consumer protection law. The obligation to consider soft law by national judges does not include an absolute obligation of adherence, nevertheless, in practice; national judges tend to defer to the EU Commission’s interpretation of EU law published in soft law form. This is due to three reasons. First, traditional administrative judicial control does not make deviation from the Commission's position an easy option. Second, national judges often lack expertise in technical fields of EU law. Lastly, interpretation of EU law may require policy decisions to be made, which does not naturally fit judges. Despite the Treaty’s and the ECJ’s statement that they are non-binding norms, soft laws are often considered by national courts the same way as hard laws. Within soft law, a distinction can be made between formal acts like a recommendation and informal soft laws like a communication. If courts would find that a recommendation is in conflict with EU hard law since it creates a new obligation, they should refer the act to the ECJ for a preliminary ruling, to get a ruling on its validity. In order to make legal control of soft laws issued by the Commission a reality, the preliminary ruling procedure should be made more effective.

Keywords: soft law, EU law, regulation of telecommunications, antitrust, prelimianary ruling

JEL Classification: K21