European Union Soft Law: New Developments

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Oana Stefan
European Union Soft Law: New Developments

Concerning the Divide Between Legally Binding
Force and Legal Effects
Oana Stefan*
The judgment in Polska Telefonia Cyfrowa sheds light on the legal effects of soft law instruments
that the Court of Justice of the European Union (CJEU) will recognise, while distinguishing
between their legally binding force and their legal or practical effects. European soft law is now
often relied on in national courts, and can have an important impact on the rights and obligations
of individuals. However, some of the goals of the Commission are only partly attainable due to the
specific legal status of soft law instruments, and the current languages policy of the European
Union. Given that soft law was not found to expressly impose obligations on individuals, the Court
held that there was no requirement to publish it in all the official languages of the European
Union.This has a negative impact on transparency and legal certainty, diminishing the role of soft
law instruments in promoting such goals.
INTRODUCTION
The proliferation of guidelines, communications, notices, recommendations, etc

– generally known as ‘soft law’ – is a reality on the European regulatory scene.
Such instruments, coming in a large variety of forms and under a range of
different titles, follow the same legal regime as recommendations and opinions,
and hence have no legally binding force according to Article 288 TFEU. This
means that they cannot be in and of themselves legally binding, ‘in the sense of
an [EU] regulation or a law in the popular sense of the word.’1 Nonetheless, the
European Court considered in its seminal Grimaldi judgment that soft law ‘cannot
be regarded as having no legal effect.’2 Thus, a distinction needs to be made
between the legally binding force and the legal effects of norms, as apparent also
in the seminal3 definition of soft law laid down by Snyder: ‘rules of conduct
*Assistant Professor, HEC Paris (Business Law and Taxation Department). I would like to thank Imelda
Maher, Mary Dobbs, Marek Martyniszyn, Arnaud van Waeyenberge, and the anonymous reviewer for
comments on earlier versions of this note. All errors are of course my own.
1 F. Snyder,‘Interinstitutional Agreements: Forms and Constitutional Limitations’ in G. Winter (ed),
Sources and Categories of European Union Law: A Comparative and Reform Perspective (Baden-Baden:
Nomos Verl-Ges, 1996) 463.
2 Case C-322/88 Grimaldi [1989] ECR I-4407 at [18].
3 This is the most frequently quoted definition of soft law: J. P. Burgess,‘What’s So European About
the European Union?: Legitimacy Between Institution and Identity’ (2002) 5 European Journal of
SocialTheory 467, 469; D. Chalmers,‘Community Law-Making’ in D. Chalmers, C. Hadjiemmanuil,
G. Monti, and A.Tomkins, European Union LawTexts and Materials (Cambridge: CUP, 2006) 137; M.
Cini,‘The Soft Law Approach: Commission Rule-Making in the EU’s State Aid Regime’ (2001) 8
JEPP 192, 194; D. Hodson and I. Maher,‘Soft Law and Sanctions: Economic Policy Co-ordination
and Reform of the Stability and Growth Pact’ (2004) 11 JEPP 798, 801; I. Maher, ‘Law and the
Open Method of Coordination:Towards a New Flexibility in European Policy-Making?’ (2004) 2
ZSE 248, 251; S. de la Rosa,‘The Open Method of Coordination in the New Member States – the
© 2012 The Author.The Modern Law Review © 2012 The Modern Law Review Limited.
(2012) 75(5) MLR 865–893 879
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European Union Soft Law
which, in principle, have no legally binding force but which nevertheless may
have practical effects’4 and also legal effects.5
However, as expressed in the international relations literature, the legal or
practical effects that soft law can produce in the absence of legally binding force
remain rather uncertain, which makes the enforceability of such instruments
problematic.6 In Grimaldi the European Court of Justice urged national judges
to ‘take into consideration’7 soft law whenever deciding on cases; however, no
further explanation was given regarding exactly what this statement entailed.
Explanations of the legal effects of soft law have been offered in subsequent
cases,8 and an important development in this direction is the recent Polska
Telefonia Cyfrowa judgment9 (PTC), which deals with the issue of enforceability
of European Commission guidelines before national regulatory authorities.The
judgment, delivered in a preliminary ruling following a reference from the Polish
Supreme Court, is an indication of the fact that soft law issued by the European
Union institutions is increasingly brought before national courts.This phenom-
enon is determined on the one hand by changes at the enforcement level of
sectors regulated through an abundance of soft law – an example of this is the
decentralisation operated by Regulation 1/2003,10 which called on the courts of
the Member States to handle European competition cases. On the other hand, it
is a consequence of the increasing reliance on soft law at European level, as
encouraged by, among others, the White Paper on European Governance11 and
the Lisbon 2020 agenda.12
This regulatory context requires now more than ever clarifications regarding
the enforceability of soft law and the ways in which Courts deal with the
Perspectives for its Use as a Tool of Soft Law’ (2005) 11 ELJ 618, 621; C. F. Sabel and J. Zeitlin,
‘Learning From Difference: the New Architecture of Experimentalist Governance in the EU’ (2008)
14 ELJ 271, 276; D. M. Trubek, P. Cottrell and M. Nance, ‘“Soft Law”, “Hard Law”, and the EU
Integration’ in G. de Búrca and J. Scott (eds), Law and New Governance in the EU and the US (Oxford:
Hart Publishing 2006) 65; D. M. Trubek and L. G. Trubek,‘Hard and Soft Law in the Construction
of Social Europe: the Role of the Open Method of Co-ordination’ (2005) 11 ELJ 343, 343; etc.
4 Initially published in F. Snyder, ‘The Effectiveness of European Community Law: Institutions,
Processes,Tools and Techniques’ (1993) 56 MLR 19, 32, republished as F. Snyder,‘The Effectiveness
of European Community Law: Institutions, Processes, Tools and Techniques’ in T. Daintith (ed),
Implementing EC Law in the United Kingdom: Structures for Indirect Rule (Chichester: John Wiley &
Sons, 1995) 64.
5 I thank Professor Snyder for suggesting this completion to his initial definition of soft law during
the Sixth International Workshop for Young Scholars, ‘The Evolution of European Courts: Insti-
tutional Change and Continuity’ Dublin 16–17 November 2007.
6 See C. Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’
(1989) 38 ICLQ 850, 862–865.
7 Grimaldi n 1 above at [18].
8 See Judgment in Case C-207/01 Altair Chimica v Commission [2003] ECR I-8875 at [41]; Judgment
in Case C-415/07 Lodato [2009] ECR I-2599 at [32]; Judgment in Joined cases 253/78 and 1 to
3/79 Procureur de la République and others v Bruno Giry and Guerlain SA and others [1980] ECR 2327
at [13]; Judgment in Case 99/79 Lancôme v Etos [1980] ECR 2511 at [11].
9 Case C-410/09 Polska Telefonia Cyfrowa judgment of 12 May 2011, nyr.
10 Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on
competition laid down in Articles 81 and 82 of the Treaty, [2003] OJ L1/1.
11 European Commission, European Governance A White Paper Brussels COM(2001) 428 final.
12 European Commission, Europe 2020: a strategy for smart, sustainable and inclusive growth COM(2010)
2020 at [5.1].
880 (2012) 75(5) MLR 865–893
Oana Stefan
potential practical (extra-legal) and legal effects of such instruments. The prac-
tical effects of soft law have been generally linked in the literature with the
transformations that soft law may generate in the behaviour and practices of
the Member States ranging from policy changes to subtler changes at the level
of discourse, understanding and policy principles.13 Legal effects generally
consist of the capacity of EU legal instruments to change the rights and obli-
gations of actors.14 Snyder provides a comprehensive list of the legal effects
European soft law may produce. They can consist of providing a normative
framework for future negotiations and for potential arguments or conflicts;
binding the enacting institution and those institutions that are parties to an
inter-institutional agreement; concretising the duty of institutional cooperation;
creating the expectations that the enacting institution will comply with the
rules it laid down in a soft law instrument; producing a stand-still effect on the
non-conforming conduct of a state or institutions; and influencing the legal
rights and obligations of third parties. Soft law can impact on national and
European legislation by expressing general principles of EU law, being part of
the acquis communautaire, interpreting hard law provisions, and serving as a legal
basis for the enactment of national legislation. In a court of law the effects of
soft law include, inter alia, providing the basis for judicial review, being the
object of an action for annulment, being used in litigation by the parties to a
trial and serving as an aid to interpretation of hard law provisions.15
This large variety of effects shows that soft law matters and has important
practical and legal consequences for institutions, Member States or individuals.
What is more, despite the fact that it is deprived of legally binding force, the
effects of soft law appear sometimes binding, from a legal or even an extra-legal
point of view.This statement might throw into doubt the purpose of distinguish-
ing between soft and hard law. For instance, soft law can ‘gradually become
politically, socially and morally binding for the actors involved’16 by the inter-
vention of certain devices other than the legal force of an act, such as those related
to knowledge and meaning making.17 These political, social or moral commit-
ments are of course extra-legal and the Courts will not enforce them as
such.18 Conversely, the case law admits certain binding legal effects of soft law
13 K. Jacobsson, ‘Between Deliberation and Discipline: Soft Governance in the EU Employment

Policy’ in U. Mörth (ed), Soft Law in Governance and Regulation: An Interdisciplinary Analysis (Chel-
tenham: Edward Elgar Publishing 2004) 89.
14 T. Hartley, The Foundations of European Community Law (Oxford: OUP, 7th ed, 2010) 354.
15 This list of legal effects is provided in F. Snyder,‘Interinstitutional Agreements: Forms and Consti-
tutional Limitations’ in Winter (ed), n 1 above, 463.
16 K. Jacobsson,‘Soft Regulation and the SubtleTransformation of States: the Case of EU Employment
Policy’ (2004) 14 Journal of European Social Policy 355, 359.
17 For example, the mechanisms used in the employment field to stimulate common knowledge of the
challenges, objectives and policy goals, while creating social and time pressure on member states, are
effective in fostering cooperation.
18 In fact, in a ‘new governance’ context, the role of courts needs to be redefined: Courts are not
enforcers of legal rules but rather ‘a source of communicating ideas and experience . . . without
being specifically prescriptive in relation to any particular form’: J. Scott and S. Sturm, ‘Courts as
Catalysts: Rethinking the Judicial Role in New Governance’ (2007) 13 Columbia Journal of European
Law 565, 572.
(2012) 75(5) MLR 865–893 881
instruments (included under the list of legal effects mentioned above): soft law
can create legal obligations for the enacting European institution, and the Courts
require the institution to comply with such instruments.19 Moreover, the Courts
have admitted that sometimes soft law which interprets hard law provisions
creates new obligations and has a binding legal effect. In such situations, soft law
is generally considered ultra vires and is annulled by the Courts,20 as only
instruments having a legally binding force can lawfully create new obligations for
third parties, such as individuals or Member States.
Consequently, there is a limit to the obligations that can be lawfully imposed
by instruments deprived of legally binding force. On the one hand, this limit
shows that the Court of Justice of the European Union distinguishes hard from
soft law, instruments that have legally binding force from instruments that do not
have such force. On the other hand, this limit is often difficult to grasp, given that
it depends entirely on the criteria employed in order to determine whether soft
law introduces new obligations that go beyond what is written in hard law
provisions.As noted by Scott, in the case of vague, general hard law norms, it may
‘frequently be impossible to make a clear determination of where the boundaries
of the existing obligation begin and end.’21 Even though a soft law instrument
might not seem to introduce new legal obligations, it might promote a very
radical interpretation of an obligation provided in a regulation or a directive thus
having in practice significant effects on the legal situation of individuals or
Member States. Indeed, one can envisage that in the absence of the soft law
instrument, the national or European authorities might interpret the specific
obligation provided in the hard law provision in a more lenient or indeed more
stringent way.The question is to what extent these effects are given legal weight
in a court of law.The PTC case sheds some light on this issue, thus giving national
judges more guidance regarding when it is necessary to ‘take into consideration’
such instruments.
The judgment shows that in the absence of legally binding force, the effects of
soft law are judicially acknowledged only in limited circumstances. On the one
hand, this is a clear illustration that the Luxembourg Court distinguishes between
hard and soft law. On the other hand, the conclusion reached in PTC points to
a potential mismatch between the real impact of soft law on the rights and
obligations of individuals and the judicial willingness to acknowledge and give
legal weight to all the effects that soft law might produce. This mismatch
undermines some of the functions that such instruments should accomplish at a
regulatory level. In sectors such as competition policy, for example, soft law is
often issued because it can be rapidly adopted and changed allowing the Euro-
pean Commission to provide national authorities and individuals with supple-
mentary information on the application of European Union law.Thus, soft law
19 For instance, rules of conduct included in an annual competition report were found, in Case
C-51/92 Hercules Chemicals v Commission [1999] ECR I-04235, to have a binding effect limiting the
discretion of the enacting institution, and thus the European Commission had a duty to comply
with the soft law instrument.
20 See for instance Case C-366/88 France v Commission [1990] ECR I-03571.
21 J. Scott,‘In Legal Limbo: Post-legislative Guidance as a Challenge for European Administrative Law’
(2011) 48 CML Rev 329, 342.
882 (2012) 75(5) MLR 865–893
Oana Stefan
can ensure transparency and consistency in the application of European Union

law by European institutions, national administrations or courts.22 However, as
evidenced by the PTC judgment, the limits imposed by the CJEU when
acknowledging the legal effects of soft law lead to a partial fulfillment of the goals
of transparency and consistency, goals often envisaged by the European Com-
mission when issuing such instruments.
THE PTC JUDGMENT
PTC concerned the 2002 Guidelines on market analysis and the assessment
of significant market power under the Community regulatory framework for
electronic communications networks and services (the Guidelines on electronic
communications markets)23 – a soft law instrument following the same legal
regime as the recommendations and opinions of Article 288 TFEU.The Guide-
lines were issued in accordance with Directive 2002/21/EC.24 The Directive
intended to harmonise the rules applicable in the sector of electronic commu-
nications networks and services. It provided that national regulatory authorities
(NRAs) had the obligation to analyse the conditions on the relevant markets and
take necessary measures in order to foster effective competition in this sector. In
particular, if the relevant market was deemed uncompetitive, the NRA had to
identify undertakings with significant market power and impose appropriate
specific regulatory obligations on them.The Guidelines on electronic commu-
nications markets established the criteria with which to analyse and assess market
power. Some aspects of the enforcement obligations of the NRAs under the
Directive are thus further detailed and explained by the Guidelines, providing a
clear example of what was referred to in the academic literature as ‘hybridity’ of
regulation – the combination of hard and soft law.25 The Guidelines belong to a
category of soft law that aims at interpreting hard law provisions and informing
the national authorities and the individuals about how directives, regulations or
Treaty Articles need to be applied in practice.While the conclusions drawn from
the PTC judgment cannot be extended to other types of soft law without further
investigation, they are of high relevance given the importance of instruments
22 On the advantages of soft law see for instance Trubek, Cottrell, and Nance, n 3 above; K.W. Abbott
and D. Sindal, ‘Hard and Soft Law in International Governance’ (2000) 54 IO 421; Snyder in
Daintith (ed), n 4 above; F. Rawlinson,‘The Role of Policy Frameworks, Codes and Guidelines in
the Control of State Aid’ in I. Harden (ed), State Aid: Community law and policy (Koln: Bundesan-
zeiger, 1993); K. C. Wellens and G. M. Borchardt,‘Soft Law in European Community Law’ (1989)
14 EL Rev 267.
23 OJ 2002, C 165/6.
24 Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a
common regulatory framework for electronic communications networks and services OJ 2002, L
108/33.
25 See the analyses in I. Maher, ‘Regulation and Modes of Governance in EC Competition Law:
What’s New in Enforcement?’ (2008) 31 Fordham Int’l LJ 1713, D. Trubek and L. Trubek, ‘New
Governance and Legal Regulation: Complementarity, Rivalry and Transformation’ (2007) 13
Columbia Journal of European Law 539; de Búrca and Scott (eds), n 3 above, I. Maher, ‘Economic
Policy Coordination and the European Court: Excessive Deficits and ECOFIN Discretion’ (2004)
29 EL Rev 831.
(2012) 75(5) MLR 865–893 883
similar to the Guidelines on electronic communications markets. Indeed, such

instruments are frequently issued in the area of EU competition law, a field where
enforcement is ensured through both national authorities or national courts and
European institutions.
In July 2006 the President of the Polish Office for Electronic Communica-
tions (Prezes) imposed regulatory obligations on one of the principal telecom-
munication operators in Poland, Polska Telefonia Cyfrowa (PTC), having found
that they had significant power in the market of voice call termination services.
PTC unsuccessfully contested the decision at both first instance and on appeal.
On second appeal before the Polish Supreme Court PTC argued that Prezes
could not rely on its decision on the Guidelines on electronic communications
markets given that they had not been published in the Polish version of the
Official Journal.
The problem the Polish Supreme Court faced concerned the interpretation of
Article 58 of the 2003 Act of Accession according to which
The texts of the acts of the institutions, and of the European Central Bank, adopted
before accession and drawn up by the Council, the Commission or the European
Central Bank in the Czech, Estonian, Hungarian, Latvian, Lithuanian, Maltese,
Polish, Slovak and Slovenian languages shall, from the date of accession, be authentic
under the same conditions as the texts drawn up in the present 11 languages.They
shall be published in the Official Journal of the European Union if the texts in the
present languages were so published.26
As noted by the Polish Supreme Court, in previous case law the CJEU inter-
preted Article 58 to the effect that EU legislation providing obligations for
individuals but not yet translated in the language of a New Member State could
not be relied upon against individuals in that State.27 The Polish Court questioned
whether this interpretation of Article 58 was restricted only to decisions or
directives – that, having legally binding force, per se produce legally binding effects
– or if it also concerned other acts affecting individuals’ rights and obligations,
such as the Guidelines at stake in the case at hand.
In answering the question, the European Court28 began by recalling the
fundamental principle that individuals should have the opportunity to acquaint
themselves with measures adopted by public authorities prior to such measures
becoming enforceable against them.Thus, regulations or directives of the Council
or of the Commission cannot have legal effect if they have not been published in
the Official Journal. Individuals should have the opportunity to determine the
source of the national measures implementing the European law that impose
obligations on them.29
26 Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the
Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary,
the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic
to the European Union and the adjustments to the Treaties on which the European Union is
founded OJ 2003, L 236/33.
27 PTC n 9 above at [17].
28 The Opinion of the Advocate General was not required in this case.
29 PTC n 9 above at [24]–[27].
884 (2012) 75(5) MLR 865–893
Oana Stefan
The Court cited with approval previous case law confirming that whenever
the language of a new Member State is an official language of the EU, only
obligations laid down in EU legislation published in that language can be
imposed on individuals in that State.30 The question asked by the national court
therefore boiled down to whether the Guidelines on electronic communications
markets – a soft law instrument deprived of legally binding force according to
Article 288 TFEU – imposed obligations on individuals. The European Court
held that it did not.31 Furthermore, the Court highlighted that there was no
general principle of EU law according to which ‘anything that might affect the
interests of an EU citizen must be drawn up in his language in all circum-
stances.’32 The Court concluded that since the Guidelines at stake in the case at
hand did not provide obligations for individuals, there was no requirement to
publish them in Polish before the Prezes could rely on them in its decision
concerning PTC.33
In conclusion, while acknowledging the legally binding effects of soft law only
in limited circumstances and stating that such instruments cannot impose obli-
gations on individuals, the European Court paradoxically endorses the view that
unpublished European soft law can be relied on against individuals by national
authorities.There are therefore two aspects to this judgment. First, it clarifies the
limits imposed by Courts when acknowledging legal effects of soft law. Second,
the judgment brings to the forefront a paradox. It shows how the purpose of
ensuring, through soft law instruments, transparency and legal certainty in the
enforcement of European law is sometimes defeated by the application of not
translated, unpublished Guidelines.
DISCUSSION
The legal effects of the Guidelines in PTC
As briefly mentioned in the introduction above, despite Article 288 depriving soft
law of legally binding force, such instruments can produce legally binding effects.
The PTC judgment reflects this idea, as the possibility of the Guidelines on
electronic communications markets producing legally binding effects is not
discarded at the outset.The CJEU neither carried out a mathematical application
of Article 288 (4) TFEU, nor stated that Guidelines could not provide obligations
for individuals because they did not have legally binding force. Instead, prior to
reaching a conclusion concerning the legal effects of the Guidelines, the Court
engaged in a textual analysis – implying that the possibility of the Guidelines
producing binding legal effects needed to be assessed. It reviewed the main
provisions of the Guidelines on electronic communications markets, concluding
that they were expressly addressed to the NRAs.Thus, the Guidelines offered the
30 Case C-161/06 Skoma-Lux [2007] ECR I-10841.

32 ibid at [37].
33 ibid at [39].
(2012) 75(5) MLR 865–893 885
NRAs assistance in the application of Directive 2002/21, namely in their tasks

to analyse relevant markets, to assess market power, or to impose regulatory
obligations on the operators; they also provided for cooperation mechanisms
between the NRAs, the national competition authorities and the European
Commission. Only after this thorough analysis did the Court find that the
Guidelines in question did not lay down obligations for individuals.34
Nonetheless, even though they did not expressly lay down legal obligations for
individuals, the Guidelines at stake in PTC clearly affected their legal situation,
in that they were used by the NRA when assessing the regulatory obligations
that needed to be imposed on a telecommunications operator.The Court itself
implicitly recognises the existence of such effects, while not necessarily taking
them into consideration when giving a solution to the case. In the concluding
paragraphs of the judgment, while referring to the Guidelines, the Court states
that there is no ‘principle of EU law under which anything that might affect the
interests of an EU citizen must be drawn in his language in all circumstances’
(emphasis added).35
Therefore, the PTC case offers an example of the effects that soft law can
have in the absence of legally binding force: while not binding on the indi-
viduals, the Guidelines could affect their rights and obligations. In doing so, the
judgment also clearly distinguishes, at a substantive level, between the legally
binding force and the effects of norms. The same distinction was similarly
made at a formal level when the Court observed that since the Guidelines
were published in the ‘C’ series of the Official Journal they could not be legally
binding.36 Paragraph 35 of PTC reads: ‘by contrast to the “L” series of the
Official Journal, the “C” series is not intended for the publication of legally
binding measures, but only for information, recommendations and opinions
concerning the European Union.’37
The above terminology appears ambiguous, in that it does not contain a clear
reference to the effects or to the legal force of ‘C’ series instruments. However,
reading this paragraph in the context of the PTC judgment suggests that ‘legally
binding’ should be understood as legally binding force, and not as merely legally
binding effects.As noted above, the Court undertook substantial content analysis
in determining whether the Guidelines in question imposed obligations on
individuals. Such demonstration would have been superfluous if the Court
considered that in any case, ‘C’ series instruments could not produce legally
binding effects.
Moreover, paragraph 35 of PTC – a judgment delivered by a chamber of six,
judging without an opinion from the Advocate General – could not be given an
interpretation that would call into question an established line of judgments that
recognise the binding legal effects of instruments published in the ‘C’ series of the
34 ibid at [31]–[34].
35 ibid at [37].
36 ibid at [35].
37 Such a link does not constitute a novelty in European case law: as early as 1992 the Court of Justice
held that a ‘C’ series instrument ‘does not constitute a binding act which by itself would enable the
national authorities to rely on the conversion rules set out therein as against traders.’ Case C-94/91
Hans-Otto Wagner [1992] ECR I-2765 at [16].
886 (2012) 75(5) MLR 865–893
Oana Stefan
Official Journal, similar to the Guidelines at issue in the PTC case. For instance,
judgments such as Dansk Rørindustri38 (Dansk) acknowledged the binding effects
of the antitrust Guidelines on fines;39 in BASF v Commission (BASF) a decision
of the Commission was considered to be ‘vitiated of illegality’40 because of the
misapplication of the leniency notice;41 and in Kronofrance v Commission (Kronof-
rance)42 the Court annulled a decision of the Commission because it failed to
correctly apply the adjustment factors for maximum amount of aid calculations
laid down in the multisectoral framework on aid for large investment projects.43
In fact, a study of competition and State aid case law reveals over 600 judgments,
orders and opinions where the Luxembourg Courts and their Advocates General
acknowledged the binding legal effects of soft law instruments.44
Rather than a change in case law, paragraph 35 of PTC should be understood
as an acknowledgement of the distinction between legally binding force and legal
effects of norms.Thus, if ‘L’ series instruments – directives, regulations, decisions
– have legally binding force and automatically produce legally binding effects,
then ‘C’ series instruments are deprived of legally binding force; however this
does not mean that they produce no legal effects at all, or that they never produce
legally binding effects.
The relevance of the distinction between legally binding force and the legal
effects (including legally binding effects) of soft law
First, from a theoretical point of view, the distinction between legally binding
force and legal effects made by the Court in PTC is fundamental and cannot be
ignored in any attempt to define soft law.45 Rationalist accounts of soft/hard law
and legalisation offer an incomplete picture of soft law because they overlook this
distinction. Second, at the level of judicial practice, a rigid interpretation of this
distinction requires the Courts to ignore the consequences that soft law has for
the rights and obligations of individuals.
At a theoretical level, an analysis of the PTC case dispels the worries con-
cerning an eventual judicial transformation of soft law into hard law, while
shedding more light on the notion of ‘obligation’ or legally binding force as a
key criterion to distinguish between these two types of norms. According to
the rationalist account offered by Abbott and his co-authors, legalisation is
understood as ‘a particular form of institutionalisation characterised by three
38 Joined Cases C-189, 202, 205, 208 and 213/02 Dansk Rørindustri and others v Commission [2005]
ECR I-5425 at [211].
39 Guidelines on the method of setting fines imposed pursuant to Article 15 (2) of Regulation No 17
and Article 65 (5) of the ECSC Treaty, OJ 1998, C 9/3.
40 Case T-15/02 BASF v Commission [2006] ECR II-497 at [541].
41 Commission Notice on the non-imposition or reduction of fines in cartel cases OJ 1996, C 207/4.
42 Case T-27/02 Kronofrance v Commission [2004] ECR II-4177 at [109].
43 Multisectoral framework on regional aid for large investment projects, OJ 1998, C 107/7.
44 O. Stefan, Soft Law before the European Court: A Principled Approach (working title) (Kluwer,
forthcoming).
45 F. Snyder, ‘Interinstitutional agreements: forms and constitutional limitations’ in Winter (ed), n 1
above 461–463.
(2012) 75(5) MLR 865–893 887
components: obligation, precision and delegation’.46 Obligation implies that the

individuals or Member States are legally bound by a certain provision; precision
requires clarity with respect to the conduct to follow; and delegation means that
the implementation, interpretation, application of the rules and conflict resolu-
tion is to be entrusted to third parties.The intensity of these three characteristics
can vary and legalisation is a continuum, ranging from lower to higher degrees of
obligation, precision, and delegation. According to this view, soft law should be
situated at the lower end of the spectrum and an increasing degree of obligation
will move soft law up towards the hard category.
Abbott et al’s definition of legalisation does not discuss legal effects of soft law,
nor does it distinguish between legally binding force and legal effects of norms.
Therefore, the definition appears to imply that if an instrument has in principle
the capacity to produce legally binding effects, and if such effects are recognised
by a court, its degree of obligation is high – and it should be placed among harder
forms of legalisation.As exemplified in the previous section, many judgments of
the CJEU recognise legally binding effects of soft law instruments, and the
possibility for the Guidelines on electronic communications markets to have the
same effects was not rejected outright in the PTC case. If the notion of ‘obliga-
tion’ referred to the legally binding effects of a norm, it would follow that those
judgments transformed soft law into hard law, thus blurring the distinction
between guidelines or notices and regulations or directives, with serious – and
very practical – consequences from the point of view of legitimacy.
This would lend weight to the thesis that by recognising soft and hard law as
having the same legal effects the Luxembourg courts can foster ‘backdoor
legislation’47 and illegitimate ways of decision-making. In this scenario, soft law
might enhance the discretion of EU institutions, encroaching on Member State
competences.48 In fact, as early as 1968, the European Parliament warned of
dangers associated with the proliferation by the Council of acts that were not
mentioned in the Treaty, notably the circumvention of the decision making
formalities regarding the consultation of the Parliament.49 National authorities
also expressed concerns with regard to the volume of soft law not mentioned in
theTreaty. In its 1992 report, the French Conseil d’État condemned the profusion
of Council decisions and resolutions as well as Commission communications.50
In the light of the distinction expressly made in the PTC case between legally
binding force and legal effects of norms it appears overly simplistic to argue that
soft law is transformed into hard law whenever legally binding effects are
recognised by a court. It follows that the distinction between soft and hard law
46 K.W. Abbott et al, ‘The Concept of Legalization’ (2000) 54 IO 401, 401.

47 The term was used in the context of English law by G. Ganz, Quasi-Legislation (London: Sweet &
Maxwell, 1987) 14, 24.
48 F. Snyder,‘Soft Law and Institutional Practice in the European Community’ in S. Martin (ed), The
Construction of Europe: Essays in Honour of Emile Noël (Dordrecht: Kluwer, 1994) 201–203.
49 Résolution du Parlement européen du 8 mai 1969, sur les actes de la collectivité des États membres
de la Communauté ainsi que les actes du Conseil non prévus par les traités adoptée à la suite du
rapport fait au nom de la Commission juridique par M. Burger, OJ 1969, C 63/18.
50 Conseil d’État, Rapport Public 1992, collection ‘Études et documents’ Documentation française 44
(Paris, 1993) 22–23.
888 (2012) 75(5) MLR 865–893
Oana Stefan
should not be sought after at the level of the legal effects that those norms can
produce, and that the notion of ‘obligation’ understood in rationalist terms is
too vague to offer a clear picture as to the ‘soft’ or ‘hard’ character of a norm.
One missing element of the definition is, according to the constructivist criti-
que of Finnemore and Toope, the mechanisms through which ‘a sense of obli-
gation might be generated.’51 Read in conjunction with other judgments, PTC
shows that the CJEU uses precisely these mechanisms in order to differentiate
between soft and hard law, between legally binding force and legally binding
effects of norms.
Thus, at the level of judicial practice, norms with a legally binding force such
as directives, regulations or decisions are automatically considered to produce
legally binding effects. The ‘sense of obligation’ seems to proceed here directly
from the wording of Article 288 TFEU. In the case of instruments deprived
of legally binding force in accordance to Article 288, the Court admits legally
binding effects only in limited circumstances, and usually indirectly, through the
mediation of higher principles of law. For example, in Dansk, BASF, and Kro-
nofrance, the Court recognised legally binding effects of soft law only with regards
to the activity of the European Commission. Moreover, legally binding effects
were not recognised automatically by the CJEU, but through a mechanism based
on general principles of law.52 The Court admitted legally binding effects in those
cases because by publishing soft law instruments the Commission created a
legitimate expectation that it will apply them in cases it investigates.Therefore,
the Commission limited its own discretion when issuing certain guidelines and
could not depart from such rules under pain of being found to be in breach of
general principles of law, such as equal treatment or legal certainty.53
These circumstances were not present in the PTC case where soft law issued
by the European Commission was directed at national authorities who were
meant to use it in the assessment of cases, and as such the Guidelines on electronic
communications markets were found not to provide obligations for individuals.
However, in practice, the Guidelines had a clear effect on the legal situation of the
individuals: the judgment allowed the Prezes to apply the Guidelines in order to
assess the market power of the telecommunication operator – which could as a
result trigger imposing regulatory obligations on PTC. Such consequences appear
to be too remote to be taken into account by the Court when assessing the legal
effects of soft law instruments.
In the light of the above, it can be concluded that CJEU acknowledges the
distinction between soft and hard law, hence there is no danger of judicial
transformation of soft law into hard law. However, it appears that while striving
to impose a strict distinction between legally binding force and legal effects of soft
law instruments the Court fails to give legal weight to important consequences
that soft law can have on the rights and obligations of individuals, and to the legal
51 M. Finnemore and S. Toope, ‘Alternatives to “Legalization”: Richer Views of Law and Politics’
(2001) 55 International Organization 743, 748.
52 For a more detailed analysis see O. Stefan, ‘Hybridity before the Court: a Hard Look at Soft Law
in the EU Competition and State Aid Case Law’ (2012) 37 European Law Review 49, 62–64.
53 Dansk n 38 above at [211].
(2012) 75(5) MLR 865–893 889
effects that soft law can actually have.The reluctance of the CJEU to recognise
all the legal effects that soft law may produce was recently criticised in relation to
instruments adopted in the area of environmental protection. Scott commends
the fact that the EU Court looks beyond the lack of legally binding force and
admits that soft law can produce certain legal effects. However, she considers that
the Court does not go far enough and disregards many of the legal effects of soft
law, thus often depriving such instruments of judicial scrutiny.54
This approach of the Court is also noticeable in the PTC case: as seen in
the previous section, the Court did not dismiss lightly the possibility that the
Guidelines might produce legally binding effects. However, it chose not to take
into account the fact that the application of the Guidelines ultimately could have
resulted in imposing new regulatory obligations on PTC.The approach backfired
at the level of the functions that the soft law at issue in PTC was supposed to
serve in the regulatory context, as will be seen in the next section. While the
guidelines enhance consistency in the application of the European regulatory
framework on electronic communications networks and services, they fall short
of ensuring legal certainty for businesses.
Limited functions of soft law instruments
Through its informative function, soft law similar to the Guidelines at issue in
PTC can play a double role. It can enhance the connections between European
and national authorities, creating the premise for a consistent application of
European law. It can equally boost the links between institutions and individuals,
natural or legal persons, thus enhancing legal certainty and transparency of
administrative activity. The interpretative communications of the Commission
were found to constitute a source of doctrine, to guide public authorities in their
activities, and also to provide a reference point for individuals, clarifying matters
related to their rights and duties.55 An important tool of EU administrative
governance,56 soft law limits institutional discretion, encouraging the administra-
tors to take a consistent approach to decision making.57 Through these instru-
ments, the Commission explains the existing EU law in a specific sector; it
presents its own views on the law and clarifies those provisions with an open and
indeterminate character.58 In this context, Snyder talks about ‘regulation by
publication’59 and Hoffman about ‘regulation by information.’60
54 Scott, n 21 above, 342–343.

55 N. Tornberg, ‘The Commission’s Communications on the General Good – magna carta or
law-making?’ (1999) 10 EBLR 24 (1999) 27.
56 H. Hofmann,‘Administrative governance in state aid policy’ in H. Hofmann and A. Türk (eds), EU
Administrative Governance (Cheltenham: Edward Elgar, 2006) 196–199.
57 M. Cini,‘The Soft Law Approach: Commission Rule-Making in the EU’s State Aid Regime’ (2001)
8 Journal of European Public Policy 192, 194.
58 M. Gardenes Santiago, ‘Las comunicaciones interpretativas de la Comision: concepto y valor
normativo’ (1992) 19 Revista de Instituciones Europeas 933, 939–940.
59 F. Snyder, ‘Soft Law and Institutional Practice in the European Community’ in Martin (ed), n 48
above 199–201.
60 H. Hofmann,‘Negotiated and Non-Negotiated Administrative Rule-Making: the Example of EC
Competition Policy (2006) 43 CML Rev 153, 169–170.
890 (2012) 75(5) MLR 865–893
Oana Stefan
The conclusion reached by the Court in the PTC judgment contributes to

ensuring consistency in the application of the European regulatory framework on
electronic communications networks and services throughout the European
Union. As stated in paragraph 11 of the Guidelines, their major objective is ‘to
ensure that NRAs use a consistent approach in applying the new regulatory
framework.’ Indeed, consistency could be damaged if the Guidelines were not
enforceable in some Member States due to the fact that they had not yet been
officially translated in the language of those Member States. However, the
achievement of the secondary goals set down in the Guidelines – to foster legal
certainty and transparency – becomes problematic in this context. As stated in
paragraph 32 of PTC, the Guidelines represent a summary of the relevant case
law and of three previous Communications of the Commission. The Court
acknowledges, therefore, the codification function of soft law, which is generally
issued with the purpose of clarifying and bringing together existing norms in a
comprehensive document. Furthermore, paragraph 12 of the Guidelines men-
tions that one of the aims is to
explain to interested parties and undertakings operating in the electronic commu-

nications sector how NRAs should undertake their assessments of SMP under the
framework Directive, thereby maximising the transparency and legal certainty of the
application of the sector specific legislation (emphasis added).
Legal certainty is a principle common to the constitutional systems of Member

States,61 recognised by Courts,62 and entrenched within the rule of law, a
founding value of the EU according to Article 2 TEU. It implies that ‘a citizen,
before committing himself to any course of action, should be able to know in
advance what legal consequences will flow from it.’63 Legal certainty requires
that legal rules in force at a certain moment are clear and precise.64 Transpar-
ency is a principle that has been progressively integrated into European law,
originally through the work of the Court and after the 1990s through Treaty
amendments and legislation.65 One of the facets of transparency is the provi-
sion of information.66 In principle, by laying down rules that make it easier for
individuals and Member States to assess how European law will be applied, soft
61 P. Craig, ‘Substantive Legitimate Expectations in Domestic and Community Law’ (1996) 55

Cambridge Law Journal 289, 304; J. Schwarze, European Administrative Law (London: Sweet and
Maxwell, 2006) cxliii.
62 See for example Case C-63/93 Duff and others [1996] ECR I-569.
63 Lord Diplock in Black Clawson Ltd v Papierwerke [1975] AC 591, 638 cited in T. Tridimas, The
General Principles of EU Law (Oxford: OUP, 2006) 242.
64 Opinion of Advocate General Cosmas in Case C-63/93 Duff and others v Minister for Agriculture and
Food [1996] ECR I-569 at [25].
65 K. Lenaerts,‘“In the Union We Trust”:Trust – Enhancing Principles of Community Law’ (2004) 41
CML Rev 317, 318–319. See also on the principle of transparency J. Lodge, ‘Transparency and
Democratic Legitimacy’ (1994) 32 JCMS 343; D. Curtin, ‘Betwixt and Between: Democracy and
Transparency in the Governance of the European Union’ in Winter et al (eds), Reforming the Treaty
on European Union: The Legal Debate (The Hague: Kluwer, 1996); S. Peers, ‘From Maastricht to
Laeken: The Political Agenda of Openness and Transparency in the EU’ in V. Deckmyn (ed),
Increasing Transparency in the European Union (Maastricht: EIPA, 2002).
66 P. Craig, EU Administrative Law (Oxford: OUP 2006) 351.
(2012) 75(5) MLR 865–893 891
law should enhance the transparency of administrative action, and should create
the premise that cases will be treated in an objective fashion, increasing the
possibility for oversight on the part of those concerned. However, the informa-
tive function of the Guidelines on electronic communications markets and the
clarity of their text are weakened since there is no requirement to publish
them in the languages of the New Member States.Two consequences might be
drawn from this.
First, the judgment shows that arguments of transparency and legal certainty
cannot in and of themselves justify publication of legal instruments in all official
languages of the EU.As seen above, PTC is an application of the languages policy
of the European Union according to which not everything that might affect the
interests of a European citizen must be published in all official languages.67 This
policy reaches its limit when the lack of publication in certain languages would
infringe the non-discrimination principle. In some recent cases dealing with
recruitment of staff for EU institutions, the General Court found that failure to
publish a call for applications in all official languages of the EU might put some
potential applicants in a disadvantaged position, and hence publication in all
languages was required.68 However, the PTC case illustrates that the CJEU is not
willing to make the same exception if the absence of sufficient official translations
has a negative impact on transparency or legal certainty.
Second, the conclusions of the PTC judgment confirm the ‘paradox’69 of soft
law: such instruments, issued in order to enhance legal certainty and transparency
in the EU administrative activity, are not always easily understood by the indi-
viduals concerned.The paradox might go even further, given that the Guidelines
can ensure consistency in the application of the new regulatory framework only
to a limited extent if the NRAs decide to disregard them.The Court does not
discuss in PTC whether the Guidelines produce binding effects for the NRAs,
and tackles this issue in ‘softer’ terms: the Guidelines offer only clarification on
the interpretation of certain EU law provisions and help in the fulfillment of the
NRAs’ regulatory tasks.70 Thus, a question left open by the judgment is whether
the NRAs could be obliged to follow the Guidelines in the name of the
consistent application of EU law, or, indeed, in the name of legal certainty and
transparency. As seen in the previous section of this comment, certain soft laws
were found by the Courts to produce binding effects for the European Com-
mission through the mediation of the same general principles of law: legal
certainty and transparency. Such a mechanism appears not to have been translated
by the CJEU at the national level and under the current legal framework it is hard
to envisage new obligations for national competition authorities on the basis of
European soft law instruments.71
67 Case C-361/01 Kik v OHIM [2003] ECR I-8283.

68 Case T-185/05 Italy v Commission [2008] ECR II-3207; see also Case T-205/07 Italy v Commission
judgment of 3 February 2011, nyr.
69 L. Senden, Soft Law in European Community Law (Oxford: Hart Publishing, 2004) 497; Hofmann, n
56 above 201–202.
71 See Case C-360/09 Pfleiderer judgment of 14 June 2011, nyr at [21].
892 (2012) 75(5) MLR 865–893
Oana Stefan
CONCLUSION
The PTC judgment offers some clarification on the application of European soft
law in a national context, providing guidance for the national courts. It shows that
even though not legally binding, soft law instruments come under the scrutiny of
the CJEU just as any other legal instrument: regulations, directives, or decisions
However, the Court recognises legal effects of soft law only in limited circum-
stances.While emphasising the difference between legally binding force and legal
effects of norms, the EU Court fails to acknowledge important consequences
that soft law can have on the rights and obligations of individuals.This judicial
approach can have an important impact on the functions that some soft law
instruments play at a regulatory level.Thus, even if certain soft law is issued by the
European Commission in order to enhance the protection of several principles of
law at the same time, only some of those values can be accommodated. In the case
discussed, the price for ensuring consistency in the application of the regulatory
framework for electronic communications networks and services is paid at the
level of legal certainty and transparency of administrative activity.
(2012) 75(5) MLR 865–893 893

European Union Soft Law: New Developments

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European Union Soft Law: New Developments

The proliferation of guidelines, communications, notices, recommendations, etc

13 K. Jacobsson, ‘Between Deliberation and Discipline: Soft Governance in the EU Employment

can ensure transparency and consistency in the application of European Union

THE PTC JUDGMENT

similar to the Guidelines on electronic communications markets. Indeed, such

The legal effects of the Guidelines in PTC

30 Case C-161/06 Skoma-Lux [2007] ECR I-10841.

NRAs assistance in the application of Directive 2002/21, namely in their tasks

components: obligation, precision and delegation’.46 Obligation implies that the

46 K.W. Abbott et al, ‘The Concept of Legalization’ (2000) 54 IO 401, 401.

Limited functions of soft law instruments

54 Scott, n 21 above, 342–343.

The conclusion reached by the Court in the PTC judgment contributes to

explain to interested parties and undertakings operating in the electronic commu-

Legal certainty is a principle common to the constitutional systems of Member

61 P. Craig, ‘Substantive Legitimate Expectations in Domestic and Community Law’ (1996) 55

67 Case C-361/01 Kik v OHIM [2003] ECR I-8283.

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