Soft law is the term applied to EU measures, such as guidelines, recommendations, declarations and opinions, which – in contrast to regulations, directives, and decisions – are not binding on those to whom they are addressed.
As Article 288 of the Treaty on the Functioning of the European Union states:
A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.
A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.
Recommendations and opinions shall have no binding force.
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 affect policy development and practice precisely 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 might undertake to do something voluntarily which they would be 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 in the EU tends to be used in situations where Member States are unable to agree on the use of a measure which is legally binding, or where the EU lacks competence to enact such a ‘hard law’ measure. 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 by mandatory conditions. They are thus an option for the Commission to use when faced with resistance from some Member States, which could block policy proposals.
Soft law measures can encourage reluctant Member States to consider and eventually adopt policies and strategies that they would resist if forced to do so by law. 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 (2001–2005) on gender equality (Decision 2001/51). The European Employment Strategy, and the current Europe 2020 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) of the Treaty on the Functioning of the European Union, which requires that Member States ‘shall take [the Guidelines] into account in their employment policies’. The new procedure of the European Semester is regarded by some as another soft law procedure, introducing the Open method of coordination into the new European Economic Governance.
The EU-level social dialogue in its so-called ‘autonomous’ strand can also be classified as soft law, in that agreements between the social partners at EU cross-sector and sectoral level can be implemented by the social partners at national level by a range of means, including codes of conduct and guidelines. The social partners are responsible for implementing and monitoring the agreements. Cross-sector agreements implemented in this way include the cross-sector agreements on telework and on stress at work, and most recently, the 2010 cross-sector agreement on inclusive labour markets.