The 25th of August, the EfSoLaw Team hosted a panel with Sebastiaan Princen (University of Utrecht) as discussant. Find the panel description right here: 

Today, the EU seems to rely more and more on soft norms, in particular in areas of new competences (Senden 2004, Korkea-aho 2015, Terpan 2015). However, relatively few publications give an overview of soft law as opposed to hard law and different definitions of what actually constitutes soft law make it difficult to draw consistent conclusions on questions such as why and when soft law norms are used in policy-making, policy implementation and policy enforcement. Why do member states and EU institutions choose either soft or hard law? What is the share of non-binding norms in policy-making at EU level? Why and when is soft law used at member states level? What similarities or differences exist between hard and soft law implementation and enforcement?
This panel deals with these questions through theoretical assessments on the elaboration, use and enforcement of soft law at European and national level. A first paper will present a conceptual framework aimed at explaining the use of soft law in the EU through a cycle made of three different stages: creation of soft law at EU level; use or non-use of soft law at national level; feedback effects at EU level.
A second paper presents for the first time a new database of EU soft law acts built through Eur-Lex and other sources (DGs, EU agencies), including data from seven policy sectors over a 15 years span (2004-2019) and more than 7000 acts.
Two other papers included in the panel present a comparative study of European soft law in various policy sectors from a quantitative perspective. The sectors of financial regulation and sustainable agriculture policy on one side, and state aid policy, pharmaceutical regulation, food safety, and common foreign and security policy on the other, are compared by these papers. The papers present the theoretical framework and the empirical ground for the comparison among policy sectors in soft law elaboration, use and enforcement. These initial results are put into perspective by the authors which conclude on the implications of the distribution and evolution of EU soft law in these policy sectors for its use and enforcement at national level.

Four papers were presented at the Conference:

- Conceptualising the use of soft law in the EU multilevel system (Miriam Hartlapp, Sabine Saurugger, Fabien Terpan): 

EU law affects governments and populations and has direct influence on the lives of citizens. With the governance turn and ever more complex decision-making in Brussels rule formulation takes increasingly often the form of soft law. Lacking binding nature and enforcement it is far from certain whether, and if so when, why and how soft law affects the performance of the EU multilevel system. This paper presents a conceptual framework to explain the use and performance of soft law in the EU. It develops a soft law cycle that starts with the creation of soft law at the EU level, the use or non-use of soft law at national level and feedback effects at EU level. Employing lenses of contemporary legal scholarship on soft law and political science insights on public policy analysis, for each of the stages in the cycle we provide a set of testable hypotheses on usage and performance of soft law. The paper is part of a multiannual, interdisciplinary project providing a systematic empirical analysis of soft law in the EU multilevel system in two member states (France and Germany), seven policy fields and over a time span of fifteen years.

- EfSoLaw: a new data set on the evolution of soft law in the European Union (Bartolomeo Cappellina): 

This paper is part of a research interested in the way in which EU norms vary concerning their binding nature and the enforcement mechanisms that ensure compliance with them under the continuum that goes from hard to soft law. EU policy combines hard and soft law instruments and their proportion varies among policy areas and over time. What is the proportion of soft law in different policy sectors and what does that imply for EU law on a multilevel policy framework? This paper addresses these questions through the presentation of a new data set: EfSoLaw. Complementary to previous databases created on EU hard law (e.g. EUDIFF, EvoEU) and to qualitative comparisons of EU soft law across policy fields (e.g. SoLaR), this data set reunites for the first time scattered data on legal acts from various sources (EUR-Lex, DGs and EU agencies archives) proposing an organised and refined coding of the evolution of EU soft law acts (e.g. recommendations, resolutions, guidelines, notices…) in seven different policy sectors over a fifteen years span (2004-2019). The policy sectors cover different patterns in the relationship between EU policy-making and the nature of interests generated by the policy problems. The data set is composed of more than 16000 acts of hard and soft law in the policy sectors of state aid policy, pharmaceutical regulation, food safety regulation, common foreign and security policy, financial regulation, sustainable agriculture policy, and police and judicial cooperation. The paper presents the main tendencies in the data set concerning the ratio of hard to soft law, the actors involved in soft law elaboration, the function of soft law (steering, procedural or explanatory) and its relationship to hard law. All these variables will be compared over time and for each policy sector, giving a valuable base to study further aspects of EU multilevel policy activity. Legislative, judicial and policy scholars can use this data set in the study of European and national policy processes involving the adoption, implementation and enforcement of EU Law.

- The Evolution of EU Soft Law in Financial Regulation and Sustainable Agriculture (2004-2019): What We Can Learn from Two Different Policy Fields (Romain Mespoulet): 

Considering the existence of a continuum ranging from non-legal norms to hard law, soft law is a category in-between. It is comprised of diverse instruments with the goal of either being an alternative to hard law or to supplement hard norms. EU policy fields usually combine both soft and hard law, however their respective proportion varies from one field to another. Furthermore, the distribution of hard and soft norms across sectors depends on specific factors such as the institutional structure, actor constellations and interest configurations. So far, this topic has drawn little interest in EU studies, thus we lack of empirical knowledge about the proportion of EU soft law and how it has developed over time. Relying on a newly created database, this paper seeks to empirically assess the nature of EU norms in the fields of financial regulation and sustainable agriculture from 2004 to 2019. This allows a mapping of the absolute proportion of soft and hard law, an assessment of the different types of instruments used and different institutional actors involved. So far, we mainly present descriptive results. They however pave the way for further qualitative and comparative analysis. 

- The Importance of EU Soft Law: Looking into Four EU Policy Fields (Anne Ausfelder, Adam Eick):

With deepening European integration, the quantity and diversity of soft law increases. However, we know little about the evolution and features of soft law in different policy fields. This paper maps EU soft law in the policy areas of state aid, pharmaceutical regulation, CFSP, and food safety. The selected policy fields all contain a remarkable body of soft law, but they vary in their competence allocation between levels and institutions. We may expect these factors to affect soft law in different ways. First, this paper analyses patterns of EU soft law in the four policy fields capturing the absolute distribution of soft law, the proportion of it in relation to hard law as well as the prevalence of certain types and authors. Then we discuss the long-term effects of agency and conflicts over competences. The comparison of policy fields will allow us to draw conclusions about the relevance of EU soft law in various institutional environments. Tracing developments of soft law over time will help to identify policy-specific changes in the EU legal framework and unique dynamics of policy fields. In sum, we expect that soft law significantly affects both the development of the EU legal framework and policy-specific dynamics. The analysis is based on a newly-created database of EU soft law in the period of 2004 to 2019 and the paper is part of the multi-annual, interdisciplinary project “European Effects of Soft Law” (“EfSoLaw”) that studies the performance of the EU multilevel system through a longitudinal, comparative analysis of the nature and effect of soft law.

If you are interested in the papers presented at the conference, feel free to contact us under: contact@efsolaw.eu