The Use of Soft Law

Various forms of soft law can be distinguished in Community practice. One category includes those soft law instruments which display parallels with what are known in national legal systems as policy rules (announcements, notifications, codes of conduct and similar). The second category shows more similarities with soft law instruments existing on the level of international law (recommendations, resolutions, declarations and similar). As such, the use of such instruments in EC law is not a new phenomenon. Now however, the application of the principles of subsidiarity and proportionality needs to lead to a higher degree of use of these instruments. The underlying idea is that in this way a contribution can be made to increasing the Community's legitimacy, transparency and effectiveness. As a consequence of this new policy objective, the use of soft law instruments has taken off in recent years. However the question is whether this objective is in fact being achieved, and if so to what extent and on what terms, and whether soft law can be a satisfactory alternative to legislation in the form of directives and regulations.
More knowledge of and insight into the function, characteristics and basis of authority of Community soft law instruments will be necessary in order to answer this question, as well as further research into the possible legal and practical effects such a form of regulation could have at the Community and national level. Is there an obligation to implement and apply such instruments? What is the added value in relation to the traditional Community legislative instruments? Do they not in fact, particularly from the point of view of the member states' obligations under Community law, make the situation even less clear, or should European soft law be welcomed given the desire for reduced government?