Helping Loose Ends Meet? The Judicial Acknowledgement of Soft Law as a Tool of Multi-Level Governance

Abstract

In the established multi-level governance system of the European Union, the Court of Justice was instrumental in framing a supranational constitution. Over recent years, a vast variety of soft law and soft methods of governance were put in place, ‘loosely’ binding together the different layers of EU governance. While the EU Courts sometimes engage with such instruments and methods, they fail to acknowledge important consequences that soft law can have on the rights and obligations of individuals. This approach can have a negative impact on the justiciability of soft law, creating a way for a vast body of EU instruments to escape judicial control. Furthermore, in the absence of judicial recognition, soft law fails to accomplish some of its key objectives, such as fostering legal certainty, transparency, and the consistent application of rules in the EU multi-level governance system.