Soft law in EU Competition Law and its judicial reception in member states: A theoretical perspective

This work draws from accounts on the nature and legal effects of soft law instruments in EU and international law with the ultimate aim to construct a theoretical framework for recognition of EU competition soft law—guidelines, communications, notices, and the like—in the judicial discourse of national courts of the European Union. “Recognition” is used to encompass instances in which the national judiciary either explicitly interprets—that is, agrees or disagrees with—the content of competition soft instruments, or treats their substance in a roundabout, implicit way—without explicit reference to soft law in the judgment proper. This second option is called “the persuaded judiciary scenario.” Importantly, a foundational assumption of the current work is that courts do not transform soft law into hard law when subjecting the former to judicial interpretation/recognition. This Article also takes issue with the fact that CJEU preliminary rulings on competition soft law disputes originating in Member States have thus far exhibited a rather resistant attitude to soft law. The supranational judiciary has, to a large extent, refused to interpret soft law because of its lack of binding force. The possibility that national courts adopt a similar approach in the currently decentralized competition enforcement system is thus not discounted, but is seen as undesirable for two important reasons.