As the eMS is about to embark on approval of NSW Guidelines the question emerges on what is the binding degree of the „Guidelines“ in the governance framework of the EC?
If the Commission would like to make NSW Guidelines binding the following text could assist in judging might be interesting to consult. The following text analyze to which extent Guidelines are enforceable - Guidelines could be identified as soft law. Read the follwoing article:
"Guidelines: The legally binding degree of soft law in the case of issued guidelines by the European Commission.
“The Commission seeks to clarify the standing of existing EC law” through case-based guidelines (Tallberg 2002: 615). In case of an infringement the principal instrument is the procedure under Article 226. In the European governance the EU legislation distinguishes between the so called “formal law” and the “informal law”. The latter also known as measures of soft law. Formal law compromises regulations, directives and decisions, whereby recommendations and opinions, as well as other methods of developing policy: e.g. policy guidelines are considered soft law.
Soft law instruments are referred as “rules of conduct which, in principle, have no legally binding force but which nevertheless may have practical effects” (Synder 1993). The use of soft law instruments has increased in the activity of political and administrative bodies. Therefore “the European Courts have been called to assess the justifiability and the validity of soft law instruments as well as their legal effects” (Stefan 2006: 3). The case law in European Courts reflects that there has been an increase in references to non legally binding provisions. “Sometimes the Court quotes a certain notice or guideline in the description of the legal framework that is taken into account when deciding the case, or refers to it in order to reinforce a certain argument” (Stefan 2006: 9).
The European Commission published in 2001 a White Paper on governance. “Among others, it promoted flexibility in legislation and the recourse to soft methods of governance, such as the open method of coordination” (Stefan 2006: 6). Another point stated in the White Paper regarded the coherent combination of non binding legal instruments with hard legislation in order to deliver better regulation.
Concerning the legal status of guidelines we need to have a closer look to the terminology. “Guidelines enacted by the Commission are not rules of law that the administration is always bound to apply but rules of practice” (Stefan 2006: 12). They are, however, part of the broader normative framework European Courts “consider when judging cases submitted to their jurisdiction” (Stefan 2006: 14). They may constitute a useful point of reference or norms producing legal effects. In that case they could make the object of an article 241 objection.
It needs to be considered that although Guidelines are not legally binding by definition, they may have certain hard law characteristics, as for instance if they impose obligations. Nevertheless it must be pointed out that the judicial transformation of soft law into hard law would affect the legal system of the Community and create a lack of procedural legitimacy. This is thus not yet the case, since “it rather recognizes the legal effects of non-binding documents while acknowledging their status as a specific and important part of the European normative framework” (Stefan 2006: 19).
Stefan, Oana Andreea (2008): European Competition Soft Law in European Courts: A Matter of Hard Principles? European Law Journal, Vol. 14, No. 6, 753-772.
Synder, Francis (1993): Soft Law and Institutional Practice in the European Community:Institutions, Processes, Tools and Techniques. EUI Working Papers (Law), No. 93/5.
Tallberg, Jonas (2002): Paths to Compliance: Enforcement, Management, and the European Union. International Organization, Vol. 56, Issue 3, 609–643