Soft law is the term applied to EU measures, such as guidelines, declarations and opinions, which, in contrast to directives, regulations and decisions, are not binding on those to whom they are addressed. However, soft law can produce some legal effects.
It is important to distinguish soft law’s lack of legally binding effect from its potential impact in practice. It is claimed that soft law may impact on policy development and practice precisely by reason of its lack of legal effect – rather, because it exercises an informal ‘soft’ influence through, for example, the demonstration effects of pilot projects, which illustrate possibilities and exert a persuasive influence. Member States and other actors may undertake voluntarily to do what they are less willing to do if legally obligated. Soft law, therefore, is sometimes presented as a more flexible instrument in achieving policy objectives.
In reality, however, soft law tends to be used in the EU context where Member States are unable to agree on the use of a ‘hard law’ measure, which is legally binding, or where the EU lacks competence to enact hard law measures. The Member States and EU institutions are thus able to adopt EU policy proposals, while leaving their implementation optional for those Member States who do not wish to be bound. They are thus a standing temptation for the Commission when faced with resistance from some Member States, which threatens to block policy proposals.
At the same time, adoption of soft law measures may encourage reluctant Member States to consider and eventually adopt policies and strategies, which are resisted when presented in the form of binding legal obligations. For example, the Commission has made extensive use of ‘action programmes’ to promote equality between women and men in the workplace, based on a Council decision establishing a four-year programme on gender equality for 2001-2005 (Decision 2001/51 ). The European Employment Strategy implemented through the open method of coordination combines soft law employment guidelines, which do not have legally binding effect, with the hard law in Article 148(2) TFEU, which requires that Member States ‘shall take [the Guidelines] into account in their employment policies’.
Equally, ‘soft law’ measures such as the non-legally binding Community Charter of the Fundamental Social Rights of Workers of 1989 have had a substantial impact in putting pressure on the Commission to propose and the Member States to adopt directives, which might otherwise not have been contemplated. The Preambles to Council Directive 91/533/EEC of 14 October 1991 on an employer’s obligation to inform employees of the conditions applicable to the contract or employment relationship and Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time contain references to the 1989 Community Charter, thus transforming the relevant provisions of the Community Charter into interpretative aids for the European Court of Justice when it comes to interpret the directives.