‘Verba Volant, Quoque (Soft Law) Scripta?’ An Analysis of the Legal Effects of National Soft Law Implementing EU Soft Law in France and the UK
Gentile G., "‘Verba Volant, Quoque (Soft Law) Scripta?’ An Analysis of the Legal Effects of National Soft Law Implementing EU Soft Law in France and the UK", in Korkea-aho, E., Eliantonio, M., & Stefan, O. (eds.) (Accepted/In press). EU Soft Law In the Member States: Theoretical Findings and Empiric
19 Pages Posted: 3 Aug 2020 Last revised: 4 Jan 2021
Date Written: July 7, 2020
EU soft law is not subject to transposition duties by the Member States. National authorities have however increasingly adopted soft law acts to implement EU soft law. The adoption of national implementing measures for EU soft law occurs in a variety of policy areas, including, for instance, competition and environment. This phenomenon is observed by Hartlapp, who has argued that national implementation practices result in efficiency gains. According to her, the implementation of EU soft law by Member States demonstrates that EU soft law has legal effects.
This chapter seeks to contribute to the emerging academic discourse surrounding the implementation of EU soft law at the national level. For this purpose, it provides insights on the effects of selected soft law measures issued by French and UK authorities to implement EU Commission soft law in the areas of competition and environmental policies. The contribution of this chapter to the existing literature and the SoLaR project is twofold. First, the chapter conducts a textual analysis of the chosen national implementing measures and closely assesses their wording. Second, it discusses the legal effects of national implementing soft law with regard to (a) the potential effect on third parties, (b) the influence on the discretion of the issuing authority, and (c) the use made by national courts.
This study provides two main findings. First, the legal effects of national implementing soft law are unsettled, and thus amplify unpredictability and uncertainty associated with EU soft law. Second, the risk of bifurcation of legal effects between EU soft law and national implementing soft law arises, with negative consequences for legal certainty. Scholars and practitioners would be justified in perceiving EU and national soft law instruments as highly uncertain, almost ‘volatile’.
Ancient wisdom offers guidance to rationalise the role and the effects of EU and national soft law. According to the Latin proverb, spoken words (verba) ‘fly away’ (volant) and thus bear no influence on individuals’ behaviour, written words (scripta) should instead ‘remain’ (manent) and influence legal conduct. How can we ensure that the wording of EU soft law measures ‘stays’ and does not ‘fly away’? The chapter argues that EU institutions, jointly with national authorities and courts, should strive to enhance the uniformity of the effects of soft law measures, and, therefore, legal certainty. In particular, EU and national authorities ought to ensure that soft law is treated as ‘written words’ (scripta), whose meaning and effects are to ‘remain’ (manent) in the legal orders of the EU and Member States.
The chapter proceeds as follows. First, it provides an overview of the selected EU policy areas and describes the legal effects of EU soft law measures issued in these fields. Second, the chapter discusses the national implementation of specific EU soft law measures in the areas of competition and environment law in France and the UK, and the legal consequences of national implementing soft law. Some final remarks and suggestions on how to address the fragmentation of the legal effects of EU and national soft law conclude.
Keywords: EU soft law, national implementing measures, legal effects
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