EU soft law: Non-binding but enforceable

Anne Ausfelder, Adam Eick, Miriam Hartlapp, Romain Mespoulet, Fabien

Terpan, Sabine Saurugger, Bartolomeo Cappellina

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To cite this version:

Anne Ausfelder, Adam Eick, Miriam Hartlapp, Romain Mespoulet, Fabien Terpan, et al.. EU soft law: Non-binding but enforceable. European Law Journal, 2024, 30 (4), pp.668-684. 10.1111/eulj.12537 . halshs-04832943

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ORIGINAL ARTICLE

EU soft-law: Non-binding but enforceable

Anne Ausfelder* | Adam Eick* | Miriam Hartlapp* | Romain Mespoulet | Sabine Saurugger* | Fabien Terpan* | Bartolomeo Cappellina*

Abstract

Why is soft law followed if it is non-binding? This question is addressed theoretically by highlighting that an instrument that is non-binding in the legal form can nevertheless contain enforcement measures, which make it ‘binding’ on a different level. These enforcement measures can be causally linked to national-level usage of EU soft law by drawing on three behavioural logics: enforcement, management and persuasion. Empirically we proceed in two steps. First, we systematically categorise a large number of EU soft law instruments and find that despite being non-binding, EU soft law instruments frequently contain hard and soft enforcement measures. Second, a survey experiment among national civil servants shows that instruments with enforcement measures are indeed perceived as more binding at the national level. Three case studies complement this data by illustrating how soft enforcement can play out through persuasion or management while hard duties push soft law usage through an enforcement logic.

<footnote>* Respectively, Anne Ausfelder and Miriam Hartlapp, Otto-Suhr-Institut für Politikwissenschaft, Freie Universität Berlin, Berlin, Germany; Adam Eick, Ludwig-Maximilians-Universität München, Munich, Germany; Romain Mespoulet and Sabine Saurugger, University Grenoble Alpes, Sciences Po Grenoble-UGA, Pacte, CNRS, Grenoble, France; Fabien Terpan, University Grenoble Alpes, Sciences Po Grenoble-UGA, CESICE, Grenoble, France; Bartolomeo Cappellina, Department of Government, University of Vienna, Vienna, Austria.</footnote>
# 1 | INTRODUCTION

European Union (EU) soft law, understood as non-binding instruments that resemble legal acts and aim at producing legal effects,<fnref n="1" />,<fnref n="2" /> is an important phenomenon in EU affairs. In quantitative terms, EU instruments increasingly take the form of soft law. At the beginning of the 2000s, about 11% of EU instruments in force were made up of recommendations and opinions.<fnref n="3" /> Since then, the share of soft law has increased,<fnref n="4" /> reaching ratios of 70% or more of the legislative output in areas like Pharmaceutical or Financial Regulation, but also in Police and Judicial Cooperation and the Common Foreign and Security Policy.<fnref n="5" /> Soft law has also made its way into the judicial realm. Qualitatively, landmark court cases established, under certain conditions, the justiciability,<fnref n="6" /> validity and reviewability of soft law.<fnref n="7" /> Turning to the national level, empirical studies, although preliminary and limited in scope, indicate that actors frequently refer to and implement soft law in their actions. These studies report strong differences in such usage across policy sectors as well as between countries, rendering diversity a key characteristic of soft law effects in the EU multilevel system.<fnref n="8" /> If private and public actors at the national level, despite important differences, widely use and Member States frequently implement soft law, this raises the question of why soft law is followed if it is non-binding.

We address this question by making a theoretical as well as empirical contribution that links enforcement measures of soft law to usage at the national level. Theoretically, our argument departs from the observation that soft law can be clearly distinguished from hard law.<fnref n="9" /> We challenge this dichotomous view by drawing on the international relations literature. Here, bindingness is a multidimensional concept that reaches beyond the legal form of an instrument. Consequently, it is theoretically underspecified to merely look at the legal form to understand why soft law is followed. A better understanding of soft law instruments requires observation of how they are enforced. Enforcement here refers to measures aimed at ensuring compliance with the rules. Required to secure rule adherence, enforcement comprises different types of measures, some of them being soft (typically monitoring and surveillance mechanisms), others being hard (typically sanctions).<fnref n="10" /> An instrument that non-binding in the legal form can nevertheless contain hard or soft enforcement measures, which make it 'binding' on a different level and trigger change in actors' behaviour. These enforcement measures can be causally linked to national-level usage of EU soft law by drawing on three behavioural logics: enforcement, management and persuasion. In terms of instrument characteristics, EU soft law instruments can contain either hard enforcement measures that follow the enforcement logic or soft

<footnote n="1">¹F. 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, 1994), 197.</footnote>

<footnote n="2">²"Legal effects", as used here, do not imply direct binding force as in the case of hard law, but rather refer to the influence of soft law on legal processes and outcomes, such as guiding legal interpretation or contributing, indirectly and in conjunction with hard law, to the annulment of decisions or acts. For a detailed overview, see L. A. Jiménez, 'Beyond Bindingness: A Typology of EU Soft Law Legal Effects', in P. L. Lácos, N. Xanthoulis, and L. A. Jiménez (eds.), *The Legal Effects of EU Soft Law: Theory, Language and Sectoral Insights* (Edward Elgar Publishing, 2023), 9–32.</footnote>

<footnote n="3">³A. von Bogdandy, F. Arndt and J. Bast, 'Legal Instruments in European Union Law and Their Reform: A Systematic Approach on an Empirical Basis', (2004) 23 Yearbook of European Law, 91, 97.</footnote>

<footnote n="4">⁴O. Stefan, 'European Competition Soft Law in European Courts: A Matter of Hard Principles?', (2008) 14 *European Law Journal*, 753; A. Zhelyazkova, T. A. Börzel, F. Schimmelfennig and U. Sedelmeier, 'Beyond Uniform Integration?', (2014) 2 *Researching the effects of enlargement on the EU's legal system*, MAXCAP *Deliverable*.</footnote>

<footnote n="5">⁵E. Korkea-aho, *Adjudicating New Governance: Deliberative Democracy in the European Union* (Oxon, 2015); B. Cappellina, A. Ausfelder, A. Eick, R. Mespoulet, M. Hartlapp, S. Saurugger and F. Terpan, 'Ever more soft law? A dataset to compare binding and non-binding EU law across policy areas and over time (2004–2019)', (2022) 23 European Union Politics, 741.</footnote>

<footnote n="6">⁶C-322/88 Grimaldi [1989] ECLI:EU:C:1989:646, para 18. E. Korkea-aho, 'National Courts and European Soft Law: Is Grimaldi Still Good Law?', (2018) 37 Yearbook of European Law, 470.</footnote>

<footnote n="7">⁷C-911/19 FBF/ACPR [2021] ECLI:EU:C:2021:599. G. Gentile, 'To be or not to be (legally binding)? Judicial review of EU soft law after BT and Fédération Bancaire Française', (2021) *Revista de Derecho Comunitario Europeo*, 981; M. Chamon and N. de Arriba-Sellier, 'FBF: On the Justiciability of Soft Law and Broadening the Discretion of EU Agencies', (2022) 18 *European Constitutional Law Review*, 286.</footnote>

<footnote n="8">⁸S. Saurugger and F. Terpan, 'Studying Resistance to EU Norms in Foreign and Security Policy', (2015) 2 European Foreign Affairs Review, 1; Z. Georgieva, 'Soft Law in EU Competition Law and its Judicial Reception in Member States: A Theoretical Perspective', (2015) 16 German Law Journal, 223; M. Eliantonio, E. Korkea-aho and O. Stefan (eds), *EU Soft Law in Member States: Theoretical Findings and Empirical Evidence* (Bloomsbury, 2021); M. Hartlapp and A. Hofmann, 'The use of EU soft law by national courts and bureaucrats: how relation to hard law and policy maturity matter', (2021) 44 West European Politics, 134.</footnote>

<footnote n="9">⁹But see F. Terpan, 'Soft Law in the European Union - The Changing Nature of EU Law', (2015) 21 European Law Journal, 68.</footnote>

<footnote n="10">¹⁰J. Tallberg, 'Paths to Compliance: Enforcement, Management, and the European Union', (2002) 56 *International Organization*, 3, 612.</footnote>
enforcement measures that are characterised by management and persuasion logic, and sometimes both at the same time. In the enforcement logic, supervision and sanctions are decisive to explain the usage of soft law measures. In the management logic, supportive processes and joint management by rule issuer and rule follower can contribute to the usage of soft law. Finally, the third logic starts from the assumption that actors are persuaded through deliberation and exchange to follow those rules where they understand the normative value of a soft law instrument.

The empirical contribution proceeds in two steps. First, by looking at the content of the soft law instruments (existence of enforcement measures or lack thereof) and at the logic of implementation (enforcement, management, persuasion), we show that soft instruments are in fact not so soft when they are more formalised and enforceable, and that enforcement measures differ systematically across policy sectors. Secondly, turning to the national level, we show that actors indeed distinguish the ‘softness’ of an instrument along the lines of formalisation and enforceability; and, that the existence of enforcement measures renders usage of soft law at the national level more likely. Put differently, instrument characteristics matter as they render some behaviour more likely. We wish to emphasise, though, that soft law in action is a complex phenomenon. Hence, its usage will also depend on other factors such as the type of actors using the instrument, the substance of an instrument, the precise type of enforcement employed as well as a range of domestic-level variables.<fnref n="11" /> We do not argue that the existence of enforcement measures is the sole factor influencing Member State usage of soft law, understood to comprise usage by private and public actors at the national level, but that their presence matters significantly.

This theoretical and empirical specification of the enforcement of the legally non-binding instruments is promising in several respects. First, International Relations scholars highlight that it is by no means certain that hard law is superior to soft law in terms of compliance. A hard legal form - a legally binding instrument - is neither necessary nor sufficient to explain compliance with legal instruments.<fnref n="12" /> Here, a more nuanced concept of bindingness might be able to illuminate the seeming conundrum. Secondly, and taking a more normative stance, research has presented ‘complex regimes’, combining soft and hard law, as the best way to shape the behaviour of states.<fnref n="13" /> The efficiency of such mixed governance regimes hinges on the interplay of soft and hard modes, such as the shadow of hierarchy that even soft enforcement can cast on non-binding instruments.<fnref n="14" /> Thirdly, it seems plausible that hard legal forms influence negotiation dynamics negatively. Indeed, case-study analyses of international negotiations show that ambitious rules are more easily achieved in soft law instruments or institutions than in legally binding ones because the lack of legally binding commitment makes them harmless and thus more acceptable.<fnref n="15" /> From this perspective, soft law that is enforceable could be a promising strategy for political actors to steer through the backdoor while benefiting from a more favourable negotiation dynamic.<fnref n="16" /> Taken together, a specification of enforcement in EU soft law may contribute not only to a better understanding of why soft law is used but also why it is used more in some situations and policy sectors than others – shedding light on the great diversity in terms of the effects of EU soft law. Indeed, the usage of soft law might be wider and stronger in a policy area where soft instruments usually come along with some kind of enforcement measures.

The next section develops the argument in more depth. It conceptualises soft law to include enforcement<fnref n="17" /> as a previously neglected dimension of bindingness and theorises enforcement, management and persuasion as three logics to influence Member State usage of EU soft law. Next, we introduce our empirical approach and present the

<footnote n="11">¹¹C. Harlow, ‘The EU and law in context: the context’, (2022) 1 *European Law Open*, 209.</footnote>

<footnote n="12">¹²K. Raustiala, ‘Form and Substance in International Agreements’, (2005) 99 *American Journal of International Law*, 581, 590; A. von Staden, ‘The Conditional Effectiveness of Soft Law: Compliance with the Decisions of the Committee against Torture’, (2022) *Human Rights Review*.</footnote>

<footnote n="13">¹³E.g., R. L. Williamson, ‘Hard Law, Soft Law, and Non-Law in Multilateral Arms Control: Some Compliance Hypotheses’, (2003) 4 *Chicago Journal of International Law*, 59.</footnote>

<footnote n="14">¹⁴A. Zehavi, ‘New Governance and Policy Instruments: are Governments Going “Soft”?’, in D. Levi-Faur (ed.), *The Oxford handbook of governance* (Oxford, 2012), 242; M. Dawson, *New Governance and the Transformation of European Law: Coordinating EU Social Law and Policy*. Cambridge Studies in European Law and Policy (Cambridge, 2011).</footnote>

<footnote n="15">¹⁵J. B. Skjrheth, O. S. Stokke and J. Wettestad, ‘Soft Law, Hard Law, and Effective Implementation of International Environmental Norms’, (2006) 6 *Global Environmental Politics*, 104.</footnote>

<footnote n="16">¹⁶L. A. J. Senden, *Soft Law in European Community Law* (Oxford/ Portland, 2004), 140.</footnote>

<footnote n="17">¹⁷The notion of enforcement, as we use it in this article, and as it is defined in Section 2, goes beyond the mere idea of sanctions applied by a legally constituted power. It may also refer to softer forms of enforcement such as monitoring and reporting requirements.</footnote>
data we use. We systematically categorise a large number of EU soft law instruments and explore their effects resulting from the processes of EU soft law implementation at the national level. We find that despite being non-binding, EU soft law instruments frequently contain hard and soft enforcement measures that render their usage at the national level more likely. In three case studies, we explore the logic through which these measures play out at the national level. We conclude by discussing the implications that enforcement of non-binding instruments has in empirical and theoretical terms.

## 2 | THEORISING ENFORCEMENT OF SOFT LAW AND ITS LINK TO USAGE AT THE NATIONAL LEVEL

The most widely used conceptualisation of soft law defines the latter as non-binding instruments that resemble legal acts and aim at producing legal effects.<fnref n="18" /> At the EU level, these are typically recommendations or guidelines. Here, the softness of EU rules mainly comes from the instrument (soft instrument), which has no legally binding force.<fnref n="19" /> A measure will be considered soft law because the instrument is seen as soft, unless the Court of Justice decides otherwise, based on the existence of proper legal commitments in the measure.<fnref n="20" /> In the following, we adopt a view that contrasts with this understanding and argue that a measure can be ‘binding’ in many ways, beyond the legal form of an act (hard instrument).

Legalisation debates were the first to challenge the dominance of legal form in a comprehensive approach to soft and hard law.<fnref n="21" /> The field has developed since, with notable advances in the International Relations literature.<fnref n="22" /> Authors highlight two,<fnref n="23" /> three<fnref n="24" /> or even five<fnref n="25" /> distinct criteria in order to differentiate the incoherent category of soft law.<fnref n="26" /> We share with this literature the understanding that bindingness has different dimensions and that it is theoretically underspecified to merely look at the legal form – or the legal bindingness – of an instrument.

We thus argue that enforcement is one (possible) dimension of bindingness. Theoretically, a (hard) legal obligation may not be accompanied by enforcement means. At the same time, an instrument that is non-binding in the legal form can contain hard or soft enforcement measures, making it ‘binding’ on a different level. There are thus good reasons to analytically distinguish legal form (hard/ soft instrument) and enforcement (hard/soft) and discuss the specific combination of these two dimensions.<fnref n="27" />

However, existing scholarship frequently discusses enforcement in its hard form only by considering the application of judicial control with precise norms, clearly defined (financial) sanctions and delegation of rule imposition to a third party.<fnref n="28" /> This strong interest in coercion and the threat of sanctions limits our understanding of enforcement. Enforcement may also take weaker forms based on non-coercive features, such as monitoring or peer review. Enforcement measures can thus be seen as either hard or soft. Typically, enforcement measures are hard when they involve external control by an organ distinct from the one which adopted the instruments (typically a court) and the possibility of legal and financial sanctions. They are soft when they are limited to monitoring or surveillance and exclude the possibility of legal and financial sanctions.

<footnote n="18">¹⁸F. Snyder, see n. 1.</footnote>

<footnote n="19">¹⁹L. A. J. Senden, see n.16.</footnote>

<footnote n="20">²⁰Then the Court reclassifies the act as a hard law act. See for instance: C-16/16 P Kingdom of Belgium v Commission [2018] ECLI:EU:C:2018:79.</footnote>

<footnote n="21">²¹K. W. Abbott, R. W. Keohane, A. Moravscik, A.-M. Slaughter and D. Snidal, ‘The Concept of Legalization’, (2000) 54, *International Organization*, 401.</footnote>

<footnote n="22">²²For an overview, A. von Staden, see n.12.</footnote>

<footnote n="23">²³K. Raustiala, see n.12, 584–585.; F. Terpan, see n.9.</footnote>

<footnote n="24">²⁴K. W. Abbott and D. Snidal, ‘Hard and soft law in international governance’, (2000) *International Organization*, 421.</footnote>

<footnote n="25">²⁵D. Bodansky, ‘Legally binding versus non-legally binding instruments’, in S. Barrett, C. Carraro and J. de Melo (eds.), *Towards a Workable and Effective Climate Regime* (2015), 155, 156.</footnote>

<footnote n="26">²⁶T. Broude and Y. Shereshevsky, ‘Explaining the Practical Purchase of Soft Law: Competing and Complementary Behavior Hypotheses’, in H. G. Cohen and T. Meyer (eds.), *International Law as Behavior* (Cambridge, 2021), 98.</footnote>

<footnote n="27">²⁷F. Terpan, see n. 9.</footnote>

<footnote n="28">²⁸B. Jack, ‘Article 260(2) TFEU. An Effective Judicial Procedure for the Enforcement of Judgments?’, (2013) 19 *European Law Journal*, 404.</footnote>
In a second step, we argue that the type of enforcement measures – soft/hard – influences the usage of soft law at the national level. Usage of soft law at the national level is more likely when soft law includes enforcement measures.

To better comprehend the causal link between soft law and usage at the national level, we combine instrumental characteristics of soft law (enforcement measures) with distinct types of usage at the national level. National level actors use soft law to a significant degree (soft/hard), and in some cases even favour hard usage (usage through a hard law act adopted at national level) over soft usage (usage through a soft law act adopted at national level).

Linking instrument characteristics and types of usages, we rely on approaches derived from the literature on compliance beyond the nation-state.<fnref n="29" /> This literature distinguishes three logics to understand how rules impact on behaviour: persuasion, management and enforcement.<fnref n="30" />

* First, the enforcement approach focuses on pressure and sanctions when explaining the behaviour of states.<fnref n="31" /> It assumes that States choose not to comply based on their own cost-benefit calculations. Hence, in order to ensure compliance, the possible losses when found in breach of a rule must be greater than the potential gains obtained from non-compliance. The level of compliance thus depends on the severity and the probability of punishment, e.g. through the ex-ante codification of enforcement procedures or explicit judicial and administrative controls that raise the costs of non-compliance.

* Secondly, and in contrast, the management approach assumes that non-compliance is, above all, due to financial, administrative or technical shortcomings (i.e., to a lack of resources or expertise), not to opposition to norms.<fnref n="32" /> From this perspective, non-compliance is seen as a problem to be jointly solved by an international organisation and its Member State. Capacity-building through the transfer of knowledge, resources or the management of processes is the key to changing the behaviour at the Member State level.

* Thirdly, persuasion takes place where processes of negotiation and exchange result in a takeover of rules by addresses of these rules.<fnref n="33" /> In this understanding, rules, even if non legal ones or soft ones in a legal sense, cannot be ignored because they enter the applicant's own normative belief system. Consequently, behavioural adjustment takes place because they are considered appropriate.

The enforcement, management and persuasion approaches have competing assumptions about why soft law is used at the national level. Characteristics of the instruments - and the fact that they may or may not include soft and hard enforcement measures - can help to bring out the logics more likely to be at play. Insights on control and monitoring processes or actor behaviour and motivation are the best available indicators to distinguish.

A precisely identifiable and mandatory form of control on an instrument (hard enforcement measures) renders usage more likely through a logic of enforcement. This, more than any other logic, exerts a negative instrumental influence to alter behaviour (stick). A non-mandatory form of control for the entire instrument or elements in it, typically through monitoring or reporting requirements (soft enforcement measures), is assumed to alter behaviour through the creation of information, thus rendering usage more likely through a logic of management. However, it is also possible, in the case of soft enforcement measures, that a logic of persuasion is at play. Here, exchange around monitoring and reporting alters the underlying norms that drive Member State action. The management and the persuasion logic can both incentivise usage in the case of soft enforcement measures.

<footnote n="29">²⁹M. Hartlapp, ‘On Enforcement, Management and Peruasion. Different Logics of Implementation Policy in the EU and the ILO’, (2007) 45 Journal of Common Market Studies, 653.</footnote>

<footnote n="30">³⁰Note that we refer to enforcement in two distinct ways: firstly, enforcement as measures that aim at compliance, typically via monitoring and enforcing performance Raustiala (2005, 585). Secondly, enforcement as one possible behavioural logic, in addition to persuasion and management.</footnote>

<footnote n="31">³¹H. L. A Hart, *Punishment and Responsibility. Essays in the Philosophy of Law* (Oxford, 1968); G. Downs, D. M. Rocke and P. N. Barsoon, ‘Is the Good News about Compliance Good News about Cooperation?’, (1996) 50 *International Organization*, 379.</footnote>

<footnote n="32">³²P. M. Haas, R. O. Keohane and M. A. Levy (eds), *Institutions for the Earth. Sources of Effective International Environmental Protection* (Cambridge, MA, 1994); A. Chayes and A. Handler Chayes, *The New Sovereignty. Compliance with International Regulating Agreements* (Cambridge, MA, 1995).</footnote>

<footnote n="33">³³C. Andone and F. Coman-Kund, ‘Persuasive rather than ‘binding’ EU soft law? An argumentative perspective on the European Commission’s soft law instruments in times of crisis’, (2022) 10 *The Theory and Practice of Legislation*, 22.</footnote>
It follows that the causal link running from instrument to usage allows making assumptions at two levels: on the prevalence of usage of soft law and on the type of usage of soft law at the national level. At the first level, the characteristics of soft instruments (soft and hard enforcement) may influence usage at the national level. As a result, we expect that soft instruments, including enforcement measures, are more likely to trigger usage effects at the national level than soft law instruments that do not feature enforcement measures at all. Secondly, we argue that the type of enforcement measures also exerts influence on usage at national level. We would then expect that hard enforcement measures will more likely trigger hard usage through the logic of enforcement, while soft enforcement measures will lead to either soft or hard usage through management and persuasion. Whether they will result in hard or soft usage will depend on additional factors, such as the content of the act and context factors at the national level.

3 | EMPIRICAL APPROACH AND DATA

To study the enforcement of EU soft law, we apply a mixed methods design. We draw on different data sources from the interdisciplinary project ‘Effects of EU soft law across the multilevel system (EfSoLaw)’: a database that captures and collates EU soft law instruments, a survey among civil servants and judges (potentially) using EU soft law and case studies of EU soft law usage at the national level.<fnref n="34" />

Empirically the project focuses on seven policy areas: state aid, pharmaceutical regulation, food safety at the crossroads between consumers and health policy, financial regulation, sustainable agriculture, police and judicial cooperation, as well as common foreign and security policy (CFSP). They represent a diversity of competences of the Union, different levels of technicality and different styles of decision-making (intergovernmental versus supranational). We study usage in two countries. France and Germany are relevant cases to explore the effects of EU soft law as they differ in theoretically central features of political and legal systems, the involvement of organised interests in policymaking and public opinion on the EU. If similar mechanisms are at play here, they are likely to matter more widely.

First, the database comprises all hard and soft law instruments produced by the European Union and all its bodies and agencies in the seven policy areas.<fnref n="35" /> The treaties recognise recommendations and opinions as non-binding instruments. Yet, many other soft instruments exist. We collected acts from Eur-Lex, the official EU database for law and public documents, for all the EuroVoc thesaurus entries and directory codes that were relevant to the policy sectors defined above. Beyond Eur-Lex, a wide range of less studied soft law instruments prevails, such as communications, notices, declarations and agency law. We, therefore, added acts from DGs' and EU Agencies' online archives to complete our sample. We classify guidelines, recommendations, communications, notices, declarations, conclusions, resolutions, opinions and measures issued by agencies and others as soft law.

We coded enforcement standards and provisions in all these soft law measures. Analysing the instruments that establish some form of enforcement, we find many that include a clear addressee responsible for the enforcement of the rules to establish vigilance in their respect. A small number of acts clarify duties of enforcement, which impose specific procedures and requirements for transposition under a defined political, administrative or judicial form of review. In the majority of the instruments, however, the document does not mention specific forms of control, such as detailing who will control the effects of the instrument and how. On this basis, we distinguished between hard enforcement included in soft law, which establishes a precisely identifiable and mandatory form of control on a measure and a clear indication of how to behave included in a soft law instrument. More specifically, we systematically assessed for all soft law instruments in our database whether they contain procedures of monitoring and control delegated to an authority, if they incentivise usage in courts, e.g., because they suggest to actors that they should demand compliance from other actors, and/or whether they provide for hard sanctions. We classify a measure as

<footnote n="34">³⁴To find out more about the project, please consult https://www.efsolaw.eu/index.html.</footnote>

<footnote n="35">³⁵B. Cappellina, A. Ausfelder, A. Eick, R. Mespoulet, M. Hartlapp, S. Saurugger and F. Terpan, see n.5.</footnote>
soft enforcement when it establishes a non-mandatory form of control for the entire instrument or for elements in it, typically through monitoring or reporting requirements that offer information about behaviour, analysis or suggest action based on the information.

Secondly, we use material from a survey among national civil servants (ministries and agencies) and judges that were sampled in the seven policy fields.<fnref n="36" /> The survey ran between January and May 2022 and contains 74 responses. Part of the survey is a quasi-experimental design that asked respondents to position six EU soft law measures on a hard-soft continuum. The six fictional measures systematically varied in formalisation and enforcement. In line with the coding of our real instruments, we constructed three levels of formalisation and three levels of enforcement that we varied systematically in a quasi-experimental approach. Formalisation increases with law-like structure and precision of goals and standards, indicating a clearer list of rules addressees are supposed to respect. Enforcement increases with prescription in the forms of monitoring, review processes, surveillance, indicating more legal and practical consequences.

Thirdly, we conduct case studies on the usage of EU soft law at the national level and the role instrumental characteristics of EU soft law have in these processes.<fnref n="37" /> We trace the process of usage on the basis of primary (expert interviews, document analysis) and secondary sources for both France and Germany. To explore the enforcement logic at play, we select cases from the EfSoLaw database that provide for differences in the enforcement measures: regional state aid guidelines are an instrument that offers hard enforcement. The Recommendation of the European Systemic Risk Board on the macro-prudential mandate of national authorities displays comply-or-explain as a formally soft demand on Member States. Finally, the EU Cybersecurity Strategy is a good example of soft enforcement. A list of the 13 expert interviews informing the case studies can be found in Appendix A.

## 4 | STUDYING HARD AND SOFT ENFORCEMENT EMPIRICALLY

The database contains a total of 2429 EU soft law instruments. Figure 1 illustrates that about one-third of these instruments (32%) come with enforcement measures. Among these instruments, a small number of 21 soft law instruments (1%, darkest slice of the pie) establish hard enforcement.

Almost all soft law instruments with hard enforcement are linked to hard law. They typically follow up on regulations and directives. They are linked to well-established EU policy areas with comparatively strong competences (shared or even exclusive competences). About half (10 acts) are communications and belong to the area of state aid. A good example is a Communication on the Community guidelines on State aid for railway undertakings. In this soft law instrument, the Commission invites Member States 'to confirm that they accept these proposals for appropriate measures in writing at the latest one year after the date of publication in the Official Journal of the European Union' (Article 127). In case a Member State does not comply, the communication highlights precise infringement vigilance responsibilities as laid down in the related Council Regulation (EC) No 659/1999. Here, hard enforcement in soft law is established through reference to enforcement provisions in hard law. There is also one soft law instrument with hard enforcement in pharmaceutical regulation. These instruments have in common that they stem from policy sectors where enforcement is (partially) centralised at the EU level. The Commission is the sole enforcer of state aid control, and the European Medicines Agency (EMA) plays an important role above the nation-state level for issuing medical approvals. Hard enforcement is certainly linked to the fact that in state aid, hard and soft law are closely intricated, soft law aiming at better-implementing requirements contained in hard instruments. Besides, hard enforcement is also prevalent in soft law acts that address processes and the functioning of EU institutions. Typically, these are instruments of nomination, such as the Council Act of 20 October 2011 appointing a Deputy Director of

<footnote n="36">³⁶As we sought comparability across policy fields, we oversampled policy areas that are weaker in personnel.</footnote>

<footnote n="37">³⁷A. L. George and A. Bennett, *Case studies and theory development in social sciences* (Cambridge, 2005).</footnote>
<figure><img src="image_3.png" /><figcaption>FIGURE 1 Hard and soft enforcement in EU soft law. N = 2429 EU soft law instruments.</figcaption></figure>

Europol.<fnref n="38" /> Acts of this type show a strong degree of formalisation when providing precise provisions and formulating obligations for processes within EU institutions. And while they are not hard law (not a directive, regulation, or decision), they constitute a rather hard type of soft law, as they apply precise and binding rules and procedures established in hard law extending to Member states and those involved in the nomination processes.

More frequent are forms of soft enforcement (769 or 32% of instruments, light grey slice of the pie). Regarding the type of instrument, soft law instruments that contain soft enforcement are mostly guidelines, recommendations and other agency regulatory measures. Among the soft duties, we find clearly formulated instructions for Member State action, such as duties to comply with the soft law instrument or to explain why a specific national tradition or interest requires different behaviour. Alternatively, the measure contains calls upon Member States to report on the effects of soft law at the national level – frequently with procedural specifications such as deadlines for submission or explanations on the type of information to be submitted. We note that the issuing authorities are EU agencies in the great majority of cases (564 or 23% of instruments), and measures are dominantly of a technical nature. This finding resonates with an observation Raustiala made for international politics, where legally non-binding instruments with substantive commitments and enforcement structures 'are most common in areas of technocratic cooperation.'<fnref n="39" /> As with hard enforcement, soft enforcement is also unevenly distributed across policy sectors. Pharmaceutical (441 or 76% of the field) and financial regulation (185 or 20% of the field) stand out as policy sectors with substantial numbers of soft enforcement measures comprising their soft law instruments. In these policy areas, enforcement is (partially) centralised at the EU-level. The EMA issues a portion of the medical approvals in Europe, and ECB and ESAs exercise certain sanctioning and surveillance duties.

Overall, a substantial amount of EU soft law comes with enforcement characteristics. If soft law instruments contain provisions that incentivise usage at the national level, these are more likely to include forms of soft enforcement, such as obligations for monitoring and reporting and precisely formulated provisions defined in section 2 as management and persuasion mechanisms of soft enforcement. Astonishingly, however, we also find that a small number of soft law instruments, despite being formally non-binding, do contain hard enforcement standards.

<footnote n="38">³⁸Council (EU) ‘Notices from the European Union Institutions Bodies, Offices and Agencies. Council. Council Act of 20 October 2011 appointing a Deputy Director of Europol’, [2011] OJ C 310/03.</footnote>

<footnote n="39">³⁹K. Raustiala, see n.12, 600.</footnote>
Moreover, we find soft and hard enforcement to be distributed unequally across policy areas. Hard enforcement exclusively figures in areas with strong EU competences where enforcement powers are centralised at the EU-level, e.g. state aid. Soft enforcement measures are spread more widely across all seven policy areas covered in our project. In sum, this quantitative analysis of EU soft law provides evidence for the argument that bindingness is not limited to the legal form of an act. What is more, characteristics of the instrument make it likely that soft law takes effect through a specific logic.

# 5 | HOW ENFORCEMENT IMPACTS SOFT LAW EFFECTS

Addressing the question of how enforcement impacts soft law effects from usage at the national level, we provide two sorts of evidence. We first establish whether actors at the national level consider differences in formalisation and enforcement in EU soft law (cf. section 5.1). This supports the first step in the causal chain running from instrument features via logics of enforcement to the usage of EU soft law at the national level. Next, we turn to case study insights that explore how different enforcement measures produce effects at the national level (cf. section 5.2).

## 5.1 | From instrument features to actor perception

Figure 2 depicts the numerical answers from the quasi-experiment on the perception of softness in our survey among civil servants in Germany and France. The violin plot shows the median, interquartile range and density of our data distribution.

A to f are fictitious EU soft law instruments that vary systematically in their degree of formalisation and enforcement. Respondents were asked to position these instruments on a continuum ranging from soft (0) to hard (10). A is an agency guideline that sets numeric benchmarks (strong formalisation) and announces that the Commission will follow up with enforcement (hard enforcement). F is an EU Commission internal staff working document with weak formalisation and no enforcement. Instruments in between are characterised by different combinations of the two dimensions: b strong formalisation and medium enforcement, c medium formalisation and hard enforcement, d low formalisation and medium enforcement and e medium formalisation and no enforcement. The results show that, importantly, respondents systematically positioned instruments with enforcement measures further to the hard end of the continuum. Overall, harder instruments have a higher median but also a higher spread. They are indeed

<figure><img src="image_4.png" /><figcaption>**FIGURE 2** Perceived softness continuum. Instruments ranged from hard (a) to soft (f).</figcaption></figure>
perceived as harder, but there is some variation among respondents as to the exact assessment of hardness. This corroborates the first step in our causal chain: national civil servants perceive instrument characteristics in a way that allows them to differentiate softness/hardness. Regarding the two dimensions that capture hardness, the results further show that with rising degrees of formalisation, EU soft law instruments are perceived as harder. On enforcement, the results point in the same direction, but the effect of increasing degrees of enforcement on the perceived softness of the instrument is less clear. This, however, might be due to the fact that our design varied the type of author issuing the instrument at the same time as formalisation and enforceability.<fnref n="40" />

## 5.2 | How different enforcement measures create effects at the national level

In the following, we turn to the second step of the causal chain. We explore how enforcement creates effects in three soft law case studies. Regarding hard/soft enforcement, the cases vary from hard (Regional state aid guidelines) to soft (Recommendation of the European Systemic Risk Board and EU Cybersecurity Strategy). We trace how these differences in enforcement are perceived by actors and how they impact the usage of soft law.

### 5.2.1 | Regional State Aid Guidelines: From hard enforcement to hard usage

The 'Regional State Aid Guidelines'<fnref n="41" /> is a case where a hard enforcement measure of soft law translates into hard usage by national actors. A credible threat of sanctions in the wider policy area further supports that soft law takes effect via an enforcement logic.

State aid, subsidies to private actors and similar measures, are generally prohibited in the EU, but there are various exceptions. For example, Article 107 (3) a) and c) allow for aid to disadvantaged regions. The control of state aid is institutionalised in a regime of systematic, centralised and hard enforcement. The European Commission holds the exclusive power to enforce state aid at the EU level. Member States must notify measures of regional state aid to the Commission, which then reviews and declares them legal or illegal by way of binding single-case decisions.<fnref n="42" /> The provisions of the treaties remain vague. As a result, the Commission holds a wide discretion to determine which types of state aid it considers legal. To specify how exactly it intends to enforce state aid, the Commission tends to resort to soft law.<fnref n="43" />

Among them are the 'Regional State Aid Guidelines', in which the Commission explains how it interprets Article 107 (3) TFEU regarding regional aid and what conditions it imposes during enforcement. The guidelines set precise rules. Subsidies and similar measures must meet certain conditions, such as bringing 'real added value' to regions. Only new production facilities can be supported and only certain types of companies are allowed to benefit.<fnref n="44" /> The conditions are operationalised in precise economic tests and legal definitions spanning 45 pages in the Official Journal.

The instrument stipulates hard obligations. These usually have a negative and a positive element. National actors are called upon to adapt their practice of distributing aid to the rules and to actively justify this behaviour in legal categories. They 'should' and 'must demonstrate' their conformity with the text of the guidelines.<fnref n="45" /> The instrument

<footnote n="40">⁴⁰We ran a similar survey within the French and German judiciaries to which 70 judges responded. Interestingly, in that survey, there is less variance between instruments. Judges do not seem to differentiate levels of softness of instruments. This is in line with a legalistic understanding of the law, whereby bindingness is a characteristic rather than a continuum.</footnote>

<footnote n="41">⁴¹European Commission, 'Guidelines on regional State aid for 2014-2020', [2013] OJ C 209 (2013).</footnote>

<footnote n="42">⁴²M. Cini, 'The soft law approach: Commission rule-making in the EU's state aid regime', (2001) 8 *Journal of European Public Policy*, 192.</footnote>

<footnote n="43">⁴³H. C. Hofmann, 'Negotiated and non-negotiated administrative rule-making: The example of EC competition policy', (2006) *Common Market Law Review*, 153.</footnote>

<footnote n="44">⁴⁴European Commission, see n.38, para 15.</footnote>

<footnote n="45">⁴⁵Ibid, 44-45.</footnote>
provides that these obligations will be enforced in a hard way by the Commission: 'The Commission will apply the principles set out in these guidelines for assessing the compatibility of all regional aid.'<fnref n="46" />

In the following, we focus on one obligation of the guidelines, which comes with a particularly hard enforcement measure: the duty of national authorities to create so-called 'regional maps,' which determine where regional aid is allowed, specifically which geographical areas can count as so-called lesser and least developed regions.<fnref n="47" /> National authorities are required to draw up regional aid maps that specify areas in which private actors can receive certain amounts of state aid. The guidelines set precise 'criteria for identifying the areas that fulfil the conditions of Article 107(3)(a) and (c) of the Treaty.' In this context, a hard enforcement measure is described: 'A regional aid map (...) must be notified to the Commission and approved by the Commission before regional aid can be awarded to undertakings located in the designated areas.'<fnref n="48" /> The establishment of such obligations is a regular routine between the Commission and the Member States. Starting in the late 1980s, the Commission began doing so via individual case decisions. Since 1998, it has codified them in guidelines, which are revised every 6-7 years. Each time, Member States are called to replace their regional aid maps with updated versions.

Turning to the usage of the guidelines at the national level, we find that both France and Germany invest considerable time and resources to comply with the obligation to design and submit regional maps (interviews BMWi, MWAE, StMWi, SMWA, GTU, ANCT).<fnref n="49" /> In German federalism, federal services and the regions (Länder) work together as equal partners within the institutional structure of the Gemeinschaftsaufgabe Verbesserung der regionalen Wirtschaftsstruktur (GRW), Germany's main regional funding programme (SMWA). In French centralism, on the other hand, the federal Commissariat général à l'égalité des territoires (CGET) was in charge and regions were merely consulted (interview RdF). In the end, the Commission accepted both the German and French maps for the period of 2014-2020 unconditionally. In both countries, national hard law confirmed the relevance of the European guidelines<fnref n="50" /> and soft national instruments presented the finalised regional maps.<fnref n="51" />

Interviews reveal that in both countries, the administrative officials involved in the process perceive the content of the instrument as hard. National actors believe that the criteria to designate areas must be applied mechanistically for the most part. Only in the allocation of 'least-developed regions' do they perceive some leeway for national discretion (interviews SMWA, ANCT). To be on the safe side, they consult in-house legal councils and hold informal contacts with the Commission before they submit the regional aid maps (interviews ANCT, BMWi).

National actors use the guidelines in a hard way, for one, because they think of state aid in general as a hard policy area. Where the EU has high enforcement powers and effective enforcement is likely, national actors take all kinds of rules seriously. Non-compliance is also particularly costly in this area because enforcement proceedings can put the disbursement of state aid on hold, and a negative decision can prevent it altogether. In particular, if the Commission refuses regional maps, Member States and regions cannot disburse regional aid.<fnref n="52" /> This would imply extensive effects on national spatial policy and regional economic policy.

But for another, national actors adhere to the guidelines due to their specific instrument characteristics and especially their hard enforcement measures. They expect that the Commission will apply the Guidelines not only as guidance but as a standard to review the legality of state aid, in this case, the regional aid maps. It is therefore expected that non-compliance is followed up with sanctions (interviews BMWi, ANCT). National actors also believe

<footnote n="46">⁴⁶Ibid, 188.</footnote>

<footnote n="47">⁴⁷Ibid, para 145-185.</footnote>

<footnote n="48">⁴⁸Ibid, para 145.</footnote>

<footnote n="49">⁴⁹Abbreviations for Interviews, see Annexe I.</footnote>

<footnote n="50">⁵⁰In France: Décret 2014-758 du 2 juillet 2014 relatif aux zones d'aide à finalité régionale et aux zones d'aide à l'investissement des petites et moyennes entreprises pour la période 2014-2020, JORF 3.7.2014, 0152, Annexes 1-4; In Germany: Investitionszulagengesetz 2010, BGBl. I S. 2350, 7.12.2008, changed on 22.12.2009, para 11.</footnote>

<footnote n="51">⁵¹In France: Ministère de l'Économie, des Finances et de la Relance (MINEFI), 'Vade-mecum des aides d'État', Édition 2020, Fiche 10; In Germany: Koordinierungsrahmen der Gemeinschaftsaufgabe „Verbesserung der regionalen Wirtschaftsstruktur“ab 1. Juli 2014, Bekanntmachung v 27.7.2014, BAnz AT 4.8.2014.</footnote>

<footnote n="52">⁵²Although they are free to justify state aid in disadvantaged regions based on other instruments and goals, such as support of innovative sectors, digitalisation, the environment etc. But the regional state aid guidelines are the only instrument that allows subsidies only for the purpose of regional development.</footnote>
that the enforcement measures of the instrument hold a certain legal authority. The ECJ has ruled that the Commission is indirectly bound to its own guidelines. For reasons of legitimate expectations, the Commission cannot apply the guidelines against one Member State but not against another.<fnref n="53" /> National actors are aware of this and they expect that the Commission enforces the guidelines systematically (interviews MWAE, GTU).

In sum, the hard enforcement measure embedded in the legal and institutional authority of the European Commission leads to hard usage. National actors perceive legal and institutional constraints and adapt their behaviour. In line with the logic of enforcement, national actors comply closely due to pressure and the threat of sanctions by the European Commission. With a hard enforcement measure, a formally non-binding act becomes almost indistinguishable from hard law.

### 5.2.2 | Financial markets – Comply-or-explain as ‘soft’ demand on Member States

The recommendation of the European Systemic Risk Board of 22 December 2011 on the macro-prudential mandate of national authorities (ESRB/2011/3)<fnref n="54" /> illustrates a case of soft enforcement with hard effects at the national level through a logic of persuasion.

In the wake of the 2008 financial crisis, which revealed the shortcomings of macro-prudential supervision at both European and national levels,<fnref n="55" /> the recommendation called for the creation of a national macro-prudential supervisory framework, notably through respective authorities. This should complement the existing framework at the EU level and ensure the broader objective of financial stability. The recommendation does so with a high degree of formalisation when formulating broad objectives (Recommendation A), setting out institutional arrangements (Recommendation B), as well as provisions regarding tasks, accountability and independence (Recommendations C, D and E). Regarding enforcement, it contains a ‘comply-or-explain’ mechanism, expecting the addressees to comply unless, in case of substantial disagreement, they provide further explanation for non-compliance. Moreover, the enforcement measures come with a clear timeline for notification of compliance or explanation.<fnref n="56" /> Yet, there is neither legal nor financial sanction in case of non-compliance. The instrument has no direct binding force, although its implementation is required and guided ‘through warnings and recommendations’.<fnref n="57" /> The possible ‘sanction’<fnref n="58" /> is of a political nature as compliance reports are published. Therefore, non-compliant addressees might be sanctioned through blaming and shaming (interview ESRB). The ‘comply-or-explain’ mechanism remains a soft demand on Member States. However, in combination with the content of the recommendation, it created a hard effect. Recommendation B explicitly calls for the designation of an authority in charge of macroprudential policy in national legislation. In sum, we have a ‘comply-or-explain’ enforcement in combination with a precise call for legislative change.

As the recommendation was among the very first that the ESRB issued, officials working in the ESRB were eager to explore how to push Member States to comply in the absence of precedent. According to interviewees, they had to learn how to use this type of instrument. More specifically, they needed an instrument that would motivate Member States to establish the kind of authorities required to reach the broader objective of financial stability and thus to comply with the recommendation.

Therefore, negotiation and exchange took place. Interviewees highlighted two main elements. First, the usage of the instrument depended on the content itself, as non-compliance would arise only in case of disagreement with the content by the addressees. Addresses have been part of the process from the beginning to the end and agreed on

<footnote n="53">⁵³A. Bouchagiar, 'The Binding Effects of Guidelines on the Compatibility of State Aid: How Hard is the Commission's Soft Law?', (2017) 8 *Journal of European Competition Law & Practice*, 157.</footnote>

<footnote n="54">⁵⁴European Systemic Risk Board, 'Recommendation on the macro-prudential mandate of national authorities', ESRB/2011/3, 22 December 2011.</footnote>

<footnote n="55">⁵⁵D. Howarth, 'Comment expliquer les réformes du secteur financier en Europe: acteurs, idées ou institutions?', in P. Hassenteufel and S. Saurugger (eds.), *Les Politiques publiques dans la crise* (Paris, 2021), 111.</footnote>

<footnote n="56">⁵⁶European Systemic Risk Board, see n. 54.</footnote>

<footnote n="57">⁵⁷Ibid, 1.</footnote>

<footnote n="58">⁵⁸Note though, that the term 'sanction' is considered inappropriate by the interviewees.</footnote>
the necessity of creating national authorities. They were involved and discussed the content of the recommendation (interview ESRB). As 'owners' of the process, they could easily agree with the content, and the goals of the recommendation did not come as a 'surprise' (interviews ESRB, HCSF). Second, national authorities were eager to have European authorities' view as they considered their feedback on national practices as very useful for comparison with other countries (interviews ESRB, HCSF).

Although the enforcement mechanism was soft, the recommendation produced hard effects in the EU. Both in France and Germany, the recommendation has been implemented by way of hard law in close aftermath to the ESRB recommendation. In France, the *Haut Conseil de stabilité financière* (HCSF) was created based on the *loi de separation et de regulation des activités bancaires* (Law on the separation and regulation of banking activities) of 2013. Although the HCSF was legally established by national hard law, the report on the *loi de separation et de regulation des activités bancaires* of the French Parliament,<fnref n="59" /> as well as the HCSF's strategy<fnref n="60" /> explicitly state that it originates from two recommendations of the ESRB.<fnref n="61" /> Similarly, in Germany, the Financial Stability Act (*Gesetz zur Überwachung der Finanzstabilität*) of 2013 established the Financial Stability Committee (*Ausschuss für Finanzstabilität*), with the task of ensuring financial stability through macro-prudential supervision. As in France, the Financial Stability Act implemented the ESRB recommendation (interview ESRB).<fnref n="62" /> The legislation cites the ESRB recommendation and uses the same arguments to justify the creation of such an authority. In this case, the 'comply-or-explain' mechanism is a soft demand with hard effects: the non-binding nature of the enforcement mechanism implied a process of negotiation and exchange, involving addressees, providing them with support and pushing them to take the recommendation seriously so that they implemented a measure they considered essential. Hence, non-compliance was unlikely to happen. Addressees would have exposed themselves to sanctions of a rather political nature in the compliance reports.

To sum up, the ESRB recommendation is a case of soft enforcement ('comply-or-explain') that led to hard usage at the national level. Since non-compliance is not very costly and there are no legal sanctions, the ESRB is, in some ways, forced to provide addressees with good reasons to comply by negotiating and exchanging with them throughout the whole process and providing them with some support throughout the different phases of policymaking. If the usage was linked to the logic of persuasion triggered by the enforcement mechanism, the resulting hard effect was mainly due to the content of the instrument.

### 5.2.3 | EU Cybersecurity Strategy – Soft enforcement with soft effects in Member States

The EU's cybersecurity strategy was published as Joint Communications by the Commission to the European Parliament and Council in 2013, 2017 and 2020.<fnref n="63" /> The instruments represent a case where soft enforcement elements in non-binding law result in soft effects at the national level by managing the implementation process through procedural guidance.

Although cybersecurity largely touches on nation-state sovereignies, the field gained political importance after the EU Member States had to deal with several cyber-attacks and following the Snowden revelations in 2013. This context is worthwhile taking into consideration when analysing the instruments' effects. Because in the same year,

<footnote n="59">⁵⁹Assemblé nationale, 'Rapport d'information sur la mise en application de la loi n° 2013-672 du 26 juillet 2013 de séparation et de régulation des activités bancaires', June 2015.</footnote>

<footnote n="60">⁶⁰Stratégie du Haut Conseil de stabilité financière, December 2014, p.3.</footnote>

<footnote n="61">⁶¹Translated by the authors.</footnote>

<footnote n="62">⁶²Deutsche Bundesbank, 'Macroprudential oversight in Germany: framework institutions and tools', Monthly Report, April 2013, p. 47.</footnote>

<footnote n="63">⁶³European Commission, 'Joint Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Cybersecurity Strategy of the European Union: An Open, Safe and Secure Cyberspace', JOIN(2013) 01 final, 7 February 2013; European Commission, 'Joint Communication to the European Parliament and the Council. Resilience, Deterrence and Defence: Building strong cybersecurity for the EU', JOIN(2017) 450 final, 13 September 2017; European Commission, 'Joint Communication to the European Parliament and the Council. The EU's Cybersecurity Strategy for the Digital Decade', JOIN(2020) 18 final, 16 December 2020.</footnote>
the Commission published its first cyber security strategy calling on the Member States to take action. In 2017, the strategy was then first updated as a communication titled ‘Resilience, Deterrence and Defence: Building strong cybersecurity for the EU.’ It became part of broader policy developments where the Commission strategically pushes ideas forward to foster harmonisation and improve the cooperation within the EU to withstand and deter cyber-attacks in an area with no supranational competences. The document formulates soft commitments for the Member States ‘to pledge how they intend to act in areas where they have the primary responsibility’<fnref n="64" /> and mentions five key actions that the Member States should perform to strengthen cybersecurity. The 2013 document ends with a soft duty requiring Member States within a clear time frame to ‘ensure that the strategy is being implemented promptly and assessed in the face of possible developments, they will gather together all relevant parties in a high-level conference and assess progress in 12 months.’<fnref n="65" />

National officials interviewed highlight the soft enforcement measure manifesting through a logic of management: ‘There is the last paragraph, which is about implementation. And I think that is very important when you have soft law yourself, that you monitor and stay on it and see how things are implemented’ (interview FMG2). Even though the paragraph does not impose hard sanctions, the soft duties fostering dialogue and regular exchange between the Member States are perceived by nation-states as essential for the document to take effect at the national level.

Both France and Germany have a history of adopting soft and hard laws within the field of cybersecurity. France, however, was ambitious early on in strengthening this policy. It founded the ANSSI (Agence nationale pour la sécurité des systems d'information) in 2009, published its first national cybersecurity strategy in 2011 and even created a consensus-building alliance with the European Commission to establish common rules for European cybersecurity. The alliance later led to the Member States agreeing to adopt further (harder) measures at the EU level,<fnref n="66" /> and France served as a model for the EU's NIS directive.<fnref n="67" /> Until today, France advocates for stronger operational cooperation between the Member States, partly driven by the French industry's demand for cooperation with the state to fend off cyber-attacks in the future (interview DAF).

Adding to this logic of management, national officials recognise a strategic use of the Commission. As regulating cybersecurity within the field of EU security policy on a supranational level has no treaty basis,<fnref n="68" /> hard law in this area mainly concerns the harmonisation of the digital internal market. Particularly after the terrorist attacks in Europe, officials observe that the Commission is ‘at least trying to stretch its competences as far as it can, and to come to the edge of what the Lisbon Treaty allows. The instruments for this are soft law instruments’ (interview FMG2). We can only speculate here that the combination of a formally non-binding instrument with soft enforcement is a conscious choice to allow for steering in an area with few EU competences.

For soft effects to manifest in Germany, we furthermore identify important context factors in the form of external triggers. The country was first reluctant to use measures coming from the EU to reduce its cyber risks.<fnref n="69" /> Several crises (especially the Snowden revelations and increasing cyber-attacks) led to the topic gaining noticeable importance and a change in Germany's normative belief system (interviews FMG1, FMG2, SNV). Today, the EU's perspective plays a greater role when implementing measures. Germany's cybersecurity strategy from 2021, for example, echoes the Commission's Joint Communication by stating that it is embedded in the European framework and should

<footnote n="64">⁶⁴European Commission, ‘Joint Communication to the European Parliament and the Council. Resilience, Deterrence and Defence: Building strong cybersecurity for the EU’, JOIN(2017) 450 final, 13 September 2017, p. 20.</footnote>

<footnote n="65">⁶⁵European Commission, ‘Joint Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Cybersecurity Strategy of the European Union: An Open, Safe and Secure Cyberspace’, JOIN(2013) 1 final, 7 February 2013, p. 20.</footnote>

<footnote n="66">⁶⁶F. Terpan and S. Saurugger, ‘Soft and hard law in times of crisis: budget monitoring, migration and cybersecurity’, (2021) 44 West European Politics, 21, 40.</footnote>

<footnote n="67">⁶⁷A. Calcara and R. Marchetti, ‘State-industry relations and cybersecurity governance in Europe’ (2021) Review of International Political Economy 1, 12.</footnote>

<footnote n="68">⁶⁸It has been argued that Article 83 TFEU can serve as a treaty basis. However, there is no consensus in the legal doctrine and the two cybersecurity directives adopted by the Parliament and the Council have been based on Article 114 TFEU (approximation of laws in relation with the internal market) instead of Article 83 TFEU. R. Wessel, ‘Towards EU cybersecurity law: regulating a new policy field’ (2015) Research Handbook on International Law and Cyberspace, Edward Elgar Publishing, (pp. 403–425).</footnote>

<footnote n="69">⁶⁹F. Terpan and S. Saurugger, see n. 66, 40.</footnote>
aim at helping to shape Europe's digital future.<fnref n="70" /> This is also mirrored in the way officials perceive the guidelines set out in the Commission's strategy from 2017, which are seen as 'trend-setting' (interviews FMG1, FMG2, IAG).

In sum, the soft enforcement asking the Member States to report their activities leads to soft usage in both Member States. France, already early on, followed EU soft law's ambitious goals regarding a stronger cybersecurity policy and was guided through this process by the Commission according to management logic. The German government realised only later the emergency for a common approach in the wake of normative developments in the wider policy area.

### 5.2.4 | Comparing the case studies

The case studies confirm the expectation that enforcement measures of the instrument and the type of usage at the national level are linked. We find three different paths demonstrating how enforcement of soft instruments gives rise to effects.

The regional state aid guidelines set out hard enforcement measures. At the national level, they translate through a logic of enforcement into hard usage. National actors comply in anticipation of enforcement at EU-level. The mechanisms and outcomes vary for the instruments with soft enforcement measures. The Recommendation of the European Systemic Risk Board comes with a formally soft 'comply-or-explain' mechanism which operates at the national level through a logic of persuasion: national actors become convinced of the necessity to build capacities. However, the outcome of hard usage is shaped by additional factors relating to the context and content of the instrument. In the case of the EU Cybersecurity Strategy, a soft enforcement measure leads to soft usage. In France, the reporting leads to a process of joint problem-solving between national and supranational actors in line with the logic of management. In Germany, reporting contributes to usage in conjunction with context change, raising awareness for the topic.

In comparison, we see that enforcement measures of an instrument do not lead to an entirely deterministic process but they steer processes of usage at the national level in a direction that makes certain outcomes likely. Hard enforcement mechanisms lead to hard use at the national level through an enforcement logic. Soft enforcement mechanisms can trigger management or persuasion and result in both soft and hard use.

## 6 | CONCLUSION

EU soft law is an increasingly important legal phenomenon in the EU. This article raises the question of why it is frequently followed if it is non-binding. We argue that it is theoretically and empirically deficient to merely look at the degree of formalisation of a measure, and suggest concentrating on enforcement of EU soft law instead as a thus far unstudied aspect. We offer a theoretical argument linking enforcement measures as instrumental features of EU soft law causally to distinct logics of enforcement to explain usage at the national level. We argue that the type of enforcement measures – soft/hard – influences the usage of soft law at the national level.

Empirically, we show, on the basis of a new data set on 2429 EU soft law instruments, that in quantitative terms, most soft law instruments indeed come without enforcement mechanisms. Yet, over one-third of EU soft law instruments contain enforcement mechanisms that we distinguished into soft (32%) or hard (1%) measures. Enforcement measures are spread unevenly across policy areas, with hard enforcement prevailing where strong EU competences and supranational enforcement powers exist. In our sample, these are the areas of state aid, pharmaceutical and financial regulation. Thus, enforcement further underlines that soft law is differential and covers a range of instruments that can be sensibly located - not in a binary opposition between hard law and soft law but - on a hard-soft continuum.

Turning to the national level, both hard and soft enforcement measures render the usage of EU soft law more likely. A survey (N = 74) among national civil servants and judges shows that they are clearly aware of the

<footnote n="70">⁷⁰Bundesministerium des Innern, für Bau und Heimat, ‘Cybersicherheitsstrategie für Deutschland’, August 2021, p. 10.</footnote>
differential push emanating from soft or hard enforcement measures in soft law. Our case studies on the Recommendation of the European Systemic Risk Board on the macro-prudential mandate of national authorities and on the EU Cybersecurity Strategy show how they respond by bringing out different logics that go beyond the underspecification of enforcement in the literature. The considerable scale of soft enforcement is likely to show through the logics of management and persuasion. Depending on further factors such as the content of the soft law instrument or national context, the effect can be hard or soft usage. Hard enforcement is likely to bite more on the basis of instrument characteristics. Tracing the process of usage for Regional state aid guidelines, we show how this results in the hard usage of EU soft law through a logic of enforcement.

In normative terms, the strong relevance of enforcement in EU soft law and, in particular, the effects this has on usage at the national level can be linked to two important debates. First, our findings can be considered good news regarding the effectiveness of EU multilevel governance. EU soft law with enforcement has a greater potential to give rise to effects at the national level, e.g. when it comes to solving implementation problems of hard law or the creation of a level playing field in the EU. It is particularly remarkable that we find enforcement to be more likely in areas with strong community competences. Future research could explore how instrument characteristics interact with a generally denser legal EU fabric in these areas, e.g. by studying social and legal questions of exposure to EU law and socialisation of decisive actors at the national level. Here, an open empirical question to be addressed, which picks up on the spatial turn in legal studies, is how enforcement of soft law interacts with and contributes to the decentralised enforcement of EU law.<fnref n="71" /> In terms of legitimacy, however, the strong effects that EU soft law can give rise to when containing enforcement measures is much more worrisome. EU soft law instruments are mostly issued by non-majoritarian actors at the EU level and have not gone through the checks and balances of legislative EU policymaking. At times, political actors might be tempted to strategically choose non-binding forms plus enforcement measures to benefit from the best of both worlds: non-binding instruments are likely to be less contested during negotiations, even when containing ambitious rules. At the same time, our results show that they give rise to substantial bindingness when enforcement measures are added – thus promising greater effect at the national level. This is problematic for legitimacy as enforcement measures limit the room for debate among national actors, and compromises cannot be negotiated freely between those that might win or lose in related implementation conflicts.

## ACKNOWLEDGEMENTS

The article is part of a wider research project on the Effects of Soft Law across the EU multilevel system (EfSoLaw) funded by Agence National de la Recherche (ANR) and Deutsche Forschungsgemeinschaft (grant number 411037244). An earlier version was presented at the Workshop “Compliance with Soft Law”, Hamburg University in April 2021. We thank participants for suggestions and comments and Charlotte Reuter and Jacob Leonhard Brandt for excellent research assistance. Open Access funding enabled and organized by Projekt DEAL.

## ORCID

Miriam Hartlapp https://orcid.org/0000-0002-2696-2748

**How to cite this article:** Ausfelder A, Eick A, Hartlapp M, et al. EU soft-law: Non-binding but enforceable. *Eur Law J.* 2024;30(4):668-684. doi:10.1111/eulj.12537

<footnote n="71">⁷¹T. Pavone and R. D. Kelemen, 'The Evolving Judicial Politics of European Integration: The European Court of Justice and national courts revisited', (2019) 25 *European Law Journal*, 352; F. de Witte, 'Here be Dragons: Legal geography and EU law', (2022) 1 *European Law Open*, 113.</footnote>
APPENDIX A

<table><caption>TABLE A1: Interviews.</caption><thead><tr><td>Code</td><td>Institution</td><td>Date</td></tr></thead><tbody><tr><td>BMWi</td><td>Bundesministerium für Wirtschaft und Energie</td><td>17.09.2020</td></tr><tr><td>RdF</td><td>Régions de France</td><td>15.12.2020</td></tr><tr><td>SMWA</td><td>Staatsministerium für Wirtschaft, Arbeit und Verkehr Saxony</td><td>17.12.2020</td></tr><tr><td>MWAE</td><td>Ministerium für Wirtschaft, Arbeit und Energie des Landes Brandenburg, 08.12.20.</td><td>08.12.2020</td></tr><tr><td>GTU</td><td>German Trade Union</td><td>05.02.2021</td></tr><tr><td>ANCT</td><td>Agence nationale de la cohésion des territoires ANCT (ex CGET), France</td><td>21.02.2021</td></tr><tr><td>FMG1<br>FMG2</td><td>Federal Ministry, Germany (2 Interviews)</td><td>02.03.2021</td></tr><tr><td>IAG</td><td>German National Industry Association</td><td>23.06.2021</td></tr><tr><td>DAF</td><td>French Defense Industry Association</td><td>21.12.2021</td></tr><tr><td>SNV</td><td>Think Tank “Stiftung Neue Verantwortung”, Germany</td><td>16.03.2022</td></tr><tr><td>HCSF</td><td>Haut Conseil de stabilité financière, France</td><td>29.03.2022</td></tr><tr><td>ESRB</td><td>European Systemic Risk Board</td><td>31.03.2022</td></tr><tr><td>StMWi</td><td>Staatsministerium für Wirtschaft Bavaria</td><td>05.11.2020</td></tr></tbody></table>