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New modes of governance are proliferating at all levels, most prominently in the EU. One main characteristic of new governance is adjustability and revisability in the form of soft law. The non-binding nature of soft law is said to contribute to flexibility and diversity in Member States and to secure national autonomy. However, this article argues that while soft law may not be legally binding, it nevertheless has legal effects that throw flexibility and diversity of national action into doubt. Beginning by demonstrating that soft law may have discernible effects on practices in Member States, at the same time restricting Member State choices, the article goes on to develop a categorisation of those effects and to document them in detail. These are: judicial recognition by the European courts, explicit terms of soft law instruments, which demand special types of national implementing measures, the role played by non-state actors, and hybrid forms of regulatory instruments comprising soft and hard law provisions. The analysis shows a need to add variety to existing research on EU soft law, which has traditionally focused on the role of the judiciary in giving legal effects to soft law. Instead, we should be more attentive to the other three factors when discussing soft law. Besides the more holistic approach, research should also analyse soft law in a more case-specific manner in order to fully grasp the implications of choice of soft law in a domestic legal system.

EU soft law is not subject to transposition duties by the Member States. Yet national authorities have increasingly adopted soft law acts to implement EU soft law in a variety of policy areas, such as competition and environment. As argued by Hartlapp, national implementation practices result in efficiency gains, while the implementation of EU soft law by the Member issued by the French and UK authorities to implement EU Commission soft law in competition and environmental policies. The contribution of this chapter to the existing literature and the European Network of Soft Law Research (SoLaR) project is twofold. First, the chapter conducts a textual analysis of the chosen national implementing measures and closely assesses their wording. Second, it discusses the legal effects of national implementing soft law with regard to (a) the potential effect on third parties, (b) the influence on the discretion of the issuing authority and (c) the use made by national courts. This analysis reaches two main findings. First, the legal effects of national implementing soft law are unsettled and thus increase unpredictability and uncertainty associated with EU soft law. Second, there is a risk of fragmentation of legal effects between EU soft law and national implementing soft law, decreasing legal certainty and hinder- ing good governance. Ancient wisdom offers guidance to rationalise the role and effects of EU and national soft law and suggests a way forward. According to the Latin proverb,3 spoken words (verba) 'fly away' (volant) and thus have no influence on individuals' behaviour, while written words (scripta) will 'remain' (manent) and influence legal conduct. How can we then ensure that the wording of EU soft law measures 'stays' and does not 'fly away'? This chapter argues that EU institutions, jointly with national authorities and courts, should strive to enhance the uniformity of the effects of soft law measures at the EU level and in Member States. In particular, EU and national authorities ought to ensure that soft law is treated as 'written words' (scripta), the meaning and effects of which 'remain' (manent) in the legal orders of the EU and its Member States. The rest of the chapter proceeds as follows. First, an overview is given of the selected EU policy areas and the legal effects of EU soft law measures issued in these fields are described. Second, the national implementation of specific EU soft law measures in the areas of competition and environment law in France and the UK are discussed, along with the legal consequences of national implementing soft law. Some final remarks and suggestions on how to address the fragmentation of the legal effects of EU and national soft law are provided in the conclusion.

The European Employment Strategy (EES) aims to promote convergence of domestic labour market policies by soft law instruments. Previous studies on the impact of the EES are mainly focused on active labour market policies. The present study aims at explaining cross national variation in national passive labour market policies and unemployment benefit levels. Building on the most recent measures and pooled time series data, the empirical findings reveal the presence of a convergence process among the most advanced economies regarding passive labour market policy efforts, with the EES fostering this trend even further. Furthermore, our findings support the argument that the EES creates pressure on governments to reform domestic labour market policies, but this pressure varies across countries and over time. The results suggest that the recommendations from the European Council have contributed to unemployment benefit reform processes.

This article takes issue with the legitimacy of EU soft law instruments issued to deal with the COVID-19 crisis. Up to August 2020, we identified a total of 197 such instruments, and analysed the procedures for their adoption. We found little evidence of parliamentary involvement or stakeholder consultation, with COVID-19 soft law replicating decision-making patterns which have been constantly criticised in the literature as illegitimate and opaque. Giving due consideration to the exceptional nature of these measures, the article suggests some quick fixes which might increase, ex post factum, the legitimacy of these instruments.

This study analyses how preference heterogeneity across EU member states affects the adoption of soft-law acts over time. On the one hand, high diversity in policy preferences is expected to increase the proportion of soft-law instruments because governments are less likely to agree to binding measures. Conversely, preference heterogeneity could also decrease soft law due to the perceived threat of compliance problems. We test these competing arguments using a dataset on all EU soft-law and hard-law instruments adopted between 1967 and 2019. The results show that preference heterogeneity increases the share of soft EU instruments. However, more past heterogeneity prompts EU legislators to decrease the proportion of softer measures in areas that experience high levels of past non-compliance.