This week DELI had the pleasure of hosting a seminar by Oana Stefan, the Senior Lecturer in EU and Public Law at King’s College London. The seminar was entitled “Helping loose ends meet?: the judicial acknowledgement of soft law as a tool of multi level governance.” The seminar was centred around Dr Stefan’s research on the relationship between soft law and its treatment by the courts.
To investigate on this issue, she looked at the interface between government and governance. Since the EU is a multi-level governmental structure, she chose EU law as her area of focus. Firstly, she elaborated on the sources of soft law by looking at whether the courts take soft law into consideration in their judgments. While there is no clear definition of soft law, it is not a new concept; rather, it stems from Article 288 (5) TFEU. In the areas of competition and state aid, soft law proves to be more pre-eminent according to her empirical data over EU legislation and case law. Next, she discussed the functions of soft law, talking about their effectiveness, transparency, flexibility and enforcing of participation, looking at how these are applied in EU law.
In examining the relationship between soft law and the EU courts, she assessed the reciprocal relationship between the two, as the courts inject rule of law values into soft law. She questioned whether the EU courts are ready (‘mature enough’) to oversee soft law. Dr Stefan argued that there are two main sources of influences on soft law by the court, namely judicial review and judicial recognition. An example to judicial review in this context is the case of France v Commission C-325/91, where ultra vires instruments, relating to an announcement in state aid, were annulled by the court. Regarding judicial recognition, she explained that soft law has influential effects, such as legal certainty, transparency and legal expectation. Within the context of competition law, soft law has a dual role of enhancing cooperation between European and national authorities and boosting the link between institutions and individuals. She alluded to the case of Expedia Case C‑226/11 and stated that the de minimis notice was not held to be binding. To conclude, she once again raised the point that the EU courts can welcome more applications of soft law in their judgments.
Following her presentation, the floor was opened up for discussion, yielding many interesting questions from DELI members. We would like to thank Dr Stefan for her intriguing seminar and are looking forward to welcoming her to Durham again.
Kata Szeidovitz and Ipek Akay
Student Representatives at DELI