European Competition Soft Law in European Courts: A Matter of Hard Principles?

• Author: Oana Andreea Ştefan
• Published date: 01 November 2008
• DOI: http://doi.org/10.1111/j.1468-0386.2008.00443.x
• Date: 01 November 2008

European Competition Soft Law

in European Courts: A Matter

of Hard Principles?

Oana Andreea S¸ tefan*

Abstract: This article analyses whether and how competition soft law instruments are

taken into consideration by the European Courts and the Advocates General. The quan-

titative analysis of the case-law reveals that even if arguments based on competition

guidelines or notices were brought to court since the early days of European law, it is only

during the last two decades that they have been taken seriously. The results of the

qualitative analysis point to the fact that soft law instruments are considered by the

European Courts an important and specific part of the body of European norms that they

should use when deciding cases submitted for their judgment. Legal effects are recognised

to these not legally binding instruments, but only when it serves the enforcement of hard,

general principles of law.

I Introduction

On 13 December 1989 the European Court of Justice (ECJ) was deciding the case of Mr

Salvatore Grimaldi, a migrant worker of Italian nationality suffering from a disease

of the hands caused by mechanical vibrations from the use of a pneumatic drill.1The

Belgian Fonds des maladies professionnelles refused to compensate him because his

illness was not mentioned in the Belgian schedule of occupational diseases. However, it

was mentioned in the relevant European schedule, which a Recommendation of the

Commission advised be introduced in national law. Recommendations are, according

to Article 189 EC (currently Article 249 EC), deprived of legally binding force, but the

ECJ considered that this did not mean that they were deprived of legal effects as well.

Therefore, they had to be ‘taken into consideration’2by national courts when deciding

on disputes submitted for their judgment.

The present article focuses on the question what does it mean to ‘take into consid-

eration’ soft law instruments, since no further explanations were given to this phrase in

* PhD candidate, University College Dublin, Ad Astra scholarship recipient. Contact: Ostefan2006@

gmail.com. For helpful comments on earlier drafts of this article I thank Professor Imelda Maher and

Professor Francis Snyder, as well as all the participants to the Sixth International Workshop for Young

Scholars (November 2007) and to the UCD European Law and Governance Summer School (July 2007).

All errors are of course my own.

1Case C-322/88, Grimaldi [1989] ECR I-4407.

2Ibid, para 18.

European Law Journal, Vol. 14, No. 6, November 2008, pp. 753–772.

© 2008 The Author

Journal compilation © 2008 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

the case-law. The starting premise is that in order to clarify the advice given to the

national courts in Grimaldi it is important to determine whether and how the European

Courts ‘take into consideration’ such instruments. The article will engage in the analy-

sis of the judgments, orders and opinions dealing with soft law instruments in the form

of notices and guidelines issued by the European Commission in the competition law

sector. In particular, two aspects shall be addressed. First, quantitatively, it is impor-

tant to determine whether, and the extent to which this type of soft law instruments

features in the case-law of the Luxembourg Courts. Second, qualitatively, it is im-

portant to determine the way in which the European judicature deals with soft law

instruments, how their normative status is acknowledged and their effects recognised.

This article is organised as follows: section II briefly examines the notion of ‘soft law’

as dealt with in the recent literature on the topic of European Governance and gives

an overview of the scope of the present research. Section III delves on the quantitative

analysis of the data gathered in order to demonstrate that the guidelines and notices of

the Commission are more and more referred to in the judgments, orders and opinions

issued in Luxembourg. Section IV engages in a qualitative analysis of the case-law, in

order to determine the way in which soft law instruments are ‘taken into consideration’

by the European Courts.

II The Soft Law Phenomenon: Setting the Framework for Analysis

A European Governance, Soft Law and Institutions

The notion of ‘soft law’ is generally contrasted in the international relations literature

to that of ‘hard law’. Baxter considers that hard law consists of ‘treaty rules which

States expect will be carried out and complied with’,3while soft law rules ‘do not create

enforceable rights and duties’.4Abbott and Snidal5define ‘hard law’ as the form of

legalisation6characterised by high levels of obligation, precision and delegation,

whereas they consider that ‘soft law’ occurs whenever one or more of the three dimen-

sions are weakened. Finnemore and Toope disagree with this latter categorisation, as

they believe that it understates the mechanisms through which ‘a sense of obligation

might be generated’.7In particular, they observe that the concept of legitimacy is a

constitutive element that has to be taken into account when determining the degrees of

obligation.8The legitimacy of rules is linked to the observance of principles such as

non-retroactivity, clarity, constancy and consistency. Moreover, legitimacy signifies

that the agents need to understand and assume the rules. This is accomplished by their

3R. Baxter, ‘International law in her infinite variety’ (1980) 29 International and Comparative Law

Quarterly 549, at 549.

4Ibid.

5K. Abbot and D. Sindal, ‘Hard and Soft Law in International Governance’ (2000) 54(3) International

Organization 421, at 421–422.

6The concept of legalisation and its dimensions were defined in K. Abbott et al, ‘The Concept of Legal-

ization’ (2000) 54(3) International Organization 401. Obligation implies that the international actors are

legally bound by a certain provision; precision requires unambiguity with respect to the conduct to follow;

and delegation means that the implementation, interpretation, application of the rules and conflict

resolution was entrusted to third parties.

7M. Finnemore and S. Toope, ‘Alternatives to “Legalization”: Richer Views of Law and Politics’ (2001)

55(3) International Organization 743, at 748.

8Ibid, at 749–750.

European Law Journal Volume 14

© 2008 The Author

754 Journal compilation © 2008 Blackwell Publishing Ltd.