Abstract: After the various recent crisis – financial, migration, Brexit, to name but a few – the mantra “the end of the EU is nigh” has somewhat become a common place. It is hardly surprising to see this repeated over and over again, while Europe got caught in the COVID-19 whirlwind – or the “eye of the storm” if you prefer more established quotes. Albeit initially a tad bit slow in mobilizing, the EU is producing measures at a competing speed. This short contribution aims at reflecting on the instruments used to achieve all these goals. And, in this regard, the conclusion is foretold, while Europe does indeed what it does best: governing through soft law. A look at selected COVID-19 emergency instruments shows that the salience of both the advantages and the drawbacks of soft law are brought to the fore by this pandemic. The current crisis should be turned into an opportunity for reform.
Keywords: COVID-19 and the EU – soft law – Commission guidance – legal effects – legitimacy – rule of law.
I. Advantages of soft law for crisis regulation
Soft law – or rules of conduct having no legally binding force but producing legal and practical effects, have been flourishing in European integration. Enshrined in Art. 288, para. 5, TFEU, EU soft law is fast, flexible, easy to issue, and thus adapted to rapid evolutions and changes in policies. This makes these instruments particularly adapted to deal with emergencies such as the current pandemic. Yet, soft law suffers from important legitimacy drawbacks, it is hardly justiciable, and its legal effects are blurred.
One does not need to go to extensive lengths to show that the primary advantage of soft law in times of crisis is its flexibility. Its simplified adoption procedures are highly valued characteristics in regulating sensitive sectors, in addressing situations where swift action is imperative, or to accommodate uncertainty and national diversity. All this is reflected in the current regulatory response to the pandemic. Faced with an initial lack of cooperation from the Member States, the EU ultimately attempted to achieve convergence through the intermediary of an ever increasing amount of soft law. Some authors argue that centralisation of all measures at the expense of subsidiarity, while desirable, might not be an ideal solution in all circumstances. In that vein, the virtues of soft law in catalysing cooperation have been praised since the times of A/H1N1 pandemic, as it leaves enough margin for states to construct their responses in accordance with national specificities.
With regards to the current crisis, the instruments setting the scene were, amongst others, a Communication on a coordinated economic response to the COVID-19 outbreak, dealing with the immediate response to the crisis, as well as a joint statement from the European Council followed up by two roadmaps by the Council and the Commission on strategies and measures to end the lockdowns. As such, these measures do not figure among the legal instruments written down in Art. 288, para. 5, TFEU, but it is known that soft law comes in a vast variety of shapes and forms. Indeed, these instruments of mostly a steering nature were soon followed by a substantive body of soft law, all issued under unprecedented time pressure. For instance, the State aid measures outlined in the initial Communication on a coordinated economic response were further substantiated, only a week later, in a Temporary Framework to support the economy; this was already amended twice in less than two months, with a flexibility that matched the dimensions of the crisis. The recommendations on the use of data and apps to fight coronavirus post lockdown can be found in at least four substantial documents adopted by various EU bodies within less than two weeks. The volume of these instruments is indeed impressive, and it only matches an unprecedented crisis of a massive scale, characterized by a rapid evolution corresponding to an ever changing scientific dataset. However, the questions are whether, in the speed of production, rule of law checks and balances are respected, and what effectiveness these measures will have.
II. Rule of law credentials
As anyone writing about soft law can confirm, a certain research fatigue is soon reached from encountering, over and over again, arguments related to the rule of law credentials of soft law. The literature (present author included) goes somewhat in circles, endlessly discussing the legitimacy, transparency, clarity, and accountability of soft law.
In order to offset the legitimacy deficit, in many sectors soft law is issued following public consultations. However, a quick look at the COVID-19 measures and EU websites show little clarity as to how exactly these instruments were issued. In State aid – where soft law is generally issued following robust consultations –press releases stress that the Commission engaged consultations with the Member States in order to issue the Temporary Framework and its various amendments. However it is difficult to discern how these consultations took place and whether the arguments put forward by the Member States were finally taken into consideration. In relation to the recommendations regarding mobile apps, issued by the Commission and the European Data Protection Board, it is unclear from the websites the extent to which national authorities have been consulted. It should be mentioned that Art. 70, para. 4, of the General Data Protection Regulation (GDPR) requires the Board to organise consultations when issuing guidance “where appropriate”, while also requiring the results of the consultation procedure to be publicly available. While the article is not drafted in a particularly prescriptive form, one may wonder whether the urgency of the pandemic is sufficient to render consultations – and publication thereof – “inappropriate”.
Most notable is the absence of the European Parliament in issuing all these rules. The Parliament itself called for the intervention of various EU bodies to set up a coordinated action to combat the pandemic. The urgency of action during the pandemic does not really explain this lack of involvement, with experiences from the Member States showing that Parliaments can indeed be very much active during a state of emergency. However, there is no requirement to consult Parliament when issuing soft measures in normal circumstances either, with some articles of the Treaty providing for the Parliament only to be informed when certain soft law is issued. In light of the increasing number of soft law instruments, issued in emergency or otherwise, research is needed to find ways of involvement of the European Parliament in drafting this material. In this vein, the focus of soft law research might need to shift from the Courts and their role in preserving the rule of law to other mechanisms that are essential in ensuring accountability and legitimacy.
With regards to accountability, it will be recalled that this cannot be ensured through ex-post judicial review. This is because in the absence of legally binding force, the threshold for justiciability of soft law instruments is rarely met. Although the Court of Justice seemed favourable to acknowledge a wider definition of ‘legal effects’ for the purposes of justiciability of international agreements, in a recent case the Court refused to review a recommendation of the European Commission as it was not intended to have binding legal effects, and hence could not constitute a challengeable act for the purposes of Art. 263 TFEU. Of course there is still the possibility for such measures to be challenged indirectly through preliminary rulings or pleas in illegality.
The issue of justiciability will become probably extremely salient, as one can already identify a variety of litigious aspects related to COVID-19 soft law. For example, issues of competences might arise and arguments might be put forward as to the competence of the Commission to regulate through soft law in areas excluded from harmonization, such as public health. Furthermore, in relation to issues such as the use of contact tracing apps, the stakes are particularly high, as they might involve a potential trade-off between privacy on the one hand and public health on the other. Since neither of these ideals can be compromised, careful work needs to be done to ensure that contact tracing is construed in a proportional fashion, both from a technical and regulatory perspective.
With an important number of instruments dealing with the same topic, duplication occurs. This is problematic not only in light of efficiency, vital in times of pandemic, but also in terms of coherence. In relation to the contact tracing apps, the Communication of the Commission states that ‘national health authorities (or entities carrying out task in the public interest in the field of health) are the controllers’ of data. Conversely, the Guidelines of the Board mention that “the national health authorities could be the controllers for such application; other controllers may also be envisaged”, emphasising on the fact that the roles and the responsibilities of such actors must be clearly set out. Given the plurality of actors involved in the setting up of such app the Guidelines appear to be more adapted to the technical reality, in that they do not require that a particular body be entrusted a task in the interest of public health.
This brief account shows that emergency soft law suffers from the same problems as any soft law. Whilst its legitimacy credentials need to be strengthened, further work is needed to clarify its legal effects while ultimately ensuring effectiveness and accountability.
III. Legal effects of COVID-19 soft law
Soft law instruments can only bind the discretion of the author but can constitute a point of reference for national authorities and courts. The necessity to ascertain such effects with some clarity becomes apparent when one looks at the scale of some measures, such as those that allowed an estimated 1.9 trillion Euros to be granted in State aid as a consequence of the pandemic. As decided, EU State aid guidance accepted by Member States through an exchange of letters creates a framework of cooperation in accordance with Art. 108, para. 1, TFEU from which neither the Commission nor the MS could be released. It remains to be seen whether the State aid Temporary Framework falls within the same category. In any case, the practical effects of State aid soft law are as such that Member States have little leeway to depart from the provisions thereof. The Court held that, while EU soft law is not legally binding for Member States, it is to be followed by the European Commission when investigating national measures.
Interesting legal issues might be raised by the temporary reintroduction of the comfort letters in antitrust. These are instruments of an individual application used before the entry into force of Regulation 1/2003 in order to speedily and informally decide on the validity of agreements that did not infringe Art. 101 TFEU or qualified for an individual exemption under Art. 101, para.3, TFEU. The Commission relied heavily on comfort letters, even though this practice raised important concerns with regard to legal certainty or transparency. While it is clear that such letters could create a legitimate expectation that the Commission would not depart from their text, it is less clear what the value of these documents will have at the national level. Historically, comfort letters were deemed not to produce binding legal effects vis-à-vis national courts. In Guerlain and Lancôme the Court of Justice decided that such letters “do not have the effect of preventing national courts before which the agreements in question are alleged to be incompatible with article  from reaching a different finding as regards the agreements concerned on the basis of the information available to them.” Whilst not binding upon the national courts, the comfort letter “constitutes a factor which the national courts may take into account.” However, to date, there is not much clarity as to what exactly does it mean to ‘take into account’ EU guidance.
What emerges from the brief examples discussed above is a potential for different applications of the COVID-19 soft law instruments at the national level. While EU guidance can indeed create a potential for mutual learning, this cannot happen outside some clear frameworks regarding the legal and practical effects that such guidance can have. Simplistic hard and soft dichotomies whereas the former have all binding effects and are considered ‘law’ whereas the latter, non-binding, can only have ‘practical’ effects with no legal relevance in a court of law cannot work, neither in times of crisis nor in usual times. Once the pandemic is over, research is needed to show how this experience could be used as a springboard to issue a “guidance for guidance”. Such guidance should be drafted with care, however, in order to preserve the flexibility of soft law, while keeping these instruments not legally binding, as required by the Treaties. Some authors – as well as some members of the Court – expressed the view that soft law might entail a ‘comply or explain’ obligation, potentially requiring national authorities to comply with soft law or explain eventual departures. Similarly, it is important to engage stakeholders and authorities from the Member States more in discussions regarding the effects of EU soft law instruments.
IV. Conclusion: the need to clarify soft law
What is striking in the EU reaction to the COVID-19 crisis is not the lack of reactivity, but rather the massive amount of measures undertaken. While an evaluation of COVID-19 soft law is too soon to complete, one important issue emerges from the above brief discussion. In times of crisis, the disadvantages of soft law, in particular its weak legitimacy credentials and unclear legal effects come to the fore. It is perhaps high time for the EU institutions to clarify uniform procedures for the adoption of soft law involving transparent consultations of stakeholders and of the European Parliament. With regards to the legal effects that COVID-19 soft law can produce, these are limited, similarly to any soft law measure issued outside the framework of the crisis. In this connection, one author wonders whether this ‘flurry’ of instruments issued in ‘unchartered territory’ could entail state liability in case of non-compliance. While the answer is probably no, as they are not intended to produce binding legal effects, the more interesting question pertains to the effectiveness of COVID-19 soft law. This is obviously a matter which can only be observed in the months/years to come, with experiences from other jurisdictions showing that soft law can orient individual behaviours in order to fight the virus.
One issue is however certain. Enlisting the trust of the citizens and Member States is essential to increase the effectiveness of COVID-19 soft law. As acknowledged by the Roadmap for Recovery, it is necessary ‘to ensure buy-in from governments and parliaments, from social partners and from citizens.’ Such buy-in from citizens, and indeed, solidarity in tackling the pandemic cannot be conceived in the absence of transparency of EU action. In that regard, the Roadmap promises that consultations as well as permanent dialogue with stakeholders will follow for further measures. One can only hope that these promises would be acted upon, and also, the expectation is that it will be possible to access sooner or later the relevant information concerning consultation processes on COVID-19 soft law.
* Reader in Law, King’s College London, firstname.lastname@example.org.
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 For a comprehensive literature review see O. Stefan, M. Avbelj, M. Eliantonio, M. Hartlapp, E. Korkea-aho, N. Rubio, EU Soft Law in the EU Legal Order: A Literature Review, in SoLaR Working Paper, no. 1/2018, www.solar-network.eu.
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 See more generally the articles in E. Fahey (ed.), Future-Mapping the Directions of European Union Law, forthcoming special issue of the Journal of International and Comparative Law.
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