Soft Law and its Importance in Ensuring Member Statesʼ Compliance with Union Law

Front matter

Beiträge zum ausländischen öffentlichen Recht und Völkerrecht 1321

Paul Weismann

Soft Law and its Importance in Ensuring Member States’ Compliance with Union Law

Preface

This work is based on my habilitation thesis which I completed at the University of Salzburg. The continuous and thorough exchange of thoughts on all kinds of aspects relating to this text with my then academic supervisor, Professor Stefan Griller, was particularly helpful in all phases of my work on it. For this support I would like to express my sincere gratitude. The text was awarded the Dr. Alois Mock-Wissenschaftspreis, for which I am thankful to the eponymous foundation.

The original thesis was updated, in part shortened, in part extended, but the structure essentially remained the same. These efforts were facilitated by the much-appreciated reviews submitted during the habilitation procedure and the review commissioned by the Austrian Science Fund FWF, which contained helpful instructions as to how to improve my arguments. My work on the thesis, and its revision respectively, was furthermore advanced by research visits at the Walter Hallstein-Institute for European Constitutional Law at the Humboldt University Berlin, at the Europa-Kolleg Hamburg and at the Amsterdam Centre for European Law and Governance at the University of Amsterdam. In this context, I would like to thank Professors Matthias Ruffert, Markus Kotzur, Andreas Grimmel, and Christina Eckes.

I am also grateful to the editors of the series ‘Contributions on Comparative Public Law and International Law’, Professors Anne Peters and Armin von Bogdandy, for having accepted my text for publication. Moreover, I would like to pay tribute to the team of Nomos for their support during the process of transforming the typescript into a book.

Also the generous financial support for the publication of this book by the following institutions is to be acknowledged: the Austrian Science Fund FWE and the Publication Fund of the library of the University of Salzburg. Without this aid, the publication of this book would not have been feasible.

Paul Weismann Salzburg, April 2023

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Content Overview

Table of Cases Court of Justice Court of Justice: Opinions ofthe Advocates General

Court of First Instance / General Court

Permanent Court of International Justice / International Court of

Justice Other judicial bodies

Council, European Parliament or European Parliament and Council

(together) Commission

I. INTRODUCTION 1. Ambition and structure 2. Methodology and embedding in legal scholarship

3. Some technicalities

II. FUNDAMENTAL QUESTIONS OF EU SOFT LAW 1. Introduction and overview

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Content Overview

IV. MECHANISMS IN EU LAW TO ENSURE LEGAL COMPLIANCE OF MEMBER STATES

VI. CONCLUSION 1. Summary

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192 318 374 384

397 397 403

487 487 490 532

637 637 643

651 709

Court of Justice: Opinions ofthe Advocates General Court of First Instance / General Court

Permanent Court of International Justice / International Court of Justice

Other judicial bodies

Council, European Parliament or European Parliament and Council

(together) Commission

I. INTRODUCTION 1. Ambition and structure 2. Methodology and embedding in legal scholarship

3. Some technicalities

1. Origins and concepts: a theoretical account of ‘soft law’ 1.1. Origins, ideas and challenges: a tour d’horizon 1.1.1. Terminology, recognition and occurrence in practice: an approximation 1.1.2. The challenges of using public international law as a starting point 1.2. Different concepts of soft law

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1.3. Discussion and conclusions 1.3.1. Different schools of thought 1.3.2. On legal (non-)bindingness as distinctive feature 1.3.3. The creators of soft law 1.3.3.1. On the difference between public and private legal action 1.3.3.2. Non-binding norms: public and private creators 1.3.4. A concept of ‘soft law’

2. Delimitation of soft law 2.1. From law 2.1.1. Delimitation with a view to enforceability and effectiveness 2.1.1.1. On the issue of enforceability 2.1.1.2. On the issue of effectiveness 2.1.2. The recognition of law, soft law and other output of public authority: relevant indicators 2.1.3. Exemplifying the proximity between law and soft law 2.1.3.1. General examples 2.1.3.2. Special effects of public international law in EU law - the Kadi saga and the case of WTO law 2.1.3.2.1. Introduction 2.1.3.2.2. The effect of UN law in the EU legal order, exemplified in the Kadi cases 2.1.3.2.3. The effect of WTO law in the EU legal order 2.1.3.2.4. Discussion 2.2. From other sets of norms 2.2.1. Custom and customary law 2.2.2. Morals 2.2.3. Regulation by private actors: the example of standards 2.3. From other output of public bodies

1. Introduction and overview 1.1. Introduction

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90 90 91 96

100 104

108 108

108 108 112

113 118 118

122 122

149 149

1.2. Overview ofthe historical and current use of EU soft law

2.1.

Introduction 2.2. Originators

On the question of assignment

The EU’s institutions

The EU’s bodies, offices and agencies

MS and non-EU bodies

2.2.4.1. Acts relating to different legal orders

2.2.4.2. Incursus: The Memoranda of Understanding concluded under the so-called umbrellas (rescue measures to protect the Eurozone) 2.2.4.2.1. Contextualisation in between EU law

and public international law

2.2.4.2.2. On the question of legal bindingness

2.3. Addressees 2.4. Legally non-binding acts other than soft law

3.1. Preliminary remarks: the meaning of Article 288 TFEU for EU soft law

3.2.

3.3.

3.1.1.

3.1.2.

The difference between recommendations and opinions Is there a numerus clausus of EU soft law acts?

The applicability of the principle of conferred powers

3.2.1. 3.2.2.

3.2.3. 3.2.4.