Hard and Soft Law in the Construction of Social Europe: the Role of the Open Method of Co‐ordination

• Published date: 01 May 2005
• DOI: http://doi.org/10.1111/j.1468-0386.2005.00263.x
• Author: Louise G. Trubek,David M. Trubek
• Date: 01 May 2005

Hard and Soft Law in the Construction of

Social Europe: the Role of the Open

Method of Co-ordination

David M. Trubek and Louise G. Trubek*

Abstract: The debate over the Open Method of Co-ordination has reopened discussion of

the role of ‘soft law’ in the process of European integration. This paper outlines the debate

over the relative value of hard and soft law in EU social policy, explores the operation of

non-binding objectives and guidelines in the European Employment Strategy, suggests a

number of reasons why ‘soft law’ might be effective in this area, and explores the possi-

bility for productive combination of hard and soft law measures.

I Introduction

The issue of the contribution of ‘soft law’ to the construction of Europe has remerged

in new form. Writing a decade ago, Francis Snyder noted that rules of conduct that

may have no legally binding force may nevertheless have practical effects for European

integration.1In recent years,a new formally non-binding but potentially important nor-

mative system has emerged through the Open Method of Co-ordination (OMC). The

OMC employs non-binding objectives and guidelines to bring about change in social

policy and other areas.

The OMC originated with the European Employment Strategy (EES) and has since

been applied to other areas, such as social inclusion and pensions. In the short period

since its formal inception at the Lisbon Summit, the OMC has generated a great deal

of discussion and debate. Much of the controversy concerns the respective merits of

‘hard’ and ‘soft’ law in the construction of Social Europe.2

European Law Journal, Vol.11, No. 3, May 2005, pp. 343–364.

© Blackwell Publishing Ltd. 2005, 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*Governance Project, Center for World Affairs and the Global Economy, European Union Center, and

Law School, University of Wisconsin-Madison.

1Snyder, ‘Soft Law and Institutional Practice in the European Community’, in S. Martin (ed.), The Con-

struction of Europe (Kluwer Academic Publishers, 1994), 198.

2Some prefer to refer to the OMC as ‘soft governance’ rather than soft law, to distinguish the OMC from

situations in which non-binding forms of guidance are rendered binding by being used to interpret legal

obligations, and to indicate that the process has many elements beyond the objectives and guidelines.

K. Jacobsson, ‘Between Deliberation and Discipline: Soft Governance in EU Employment Policy’, in

U. Morth (ed.), Soft Law in Governance and Regulation: An Interdisciplinary Analysis (Edward Edgar,

forthcoming).

Both those who favour the OMC as a mode of governance and those who question

its desirability compare the OMC,implicitly or explicitly, with the Community Method.

The Community Method is thought of as ‘hard law’ because it creates uniform rules

that Member States must adopt, provides sanctions if they fail to do so, and allows

challenges for non-compliance to be brought in court. In contrast, the OMC, which

has general and open-ended guidelines rather than rules, provides no formal sanctions

for Member States that do not follow the guidelines, and is not justiciable, is thought

of as ‘soft law’. Proponents of the OMC argue that it can be effective despite—or even

because of—its open-ended, non-binding, non-justiciable qualities. Opponents ques-

tion that conclusion. They not only argue that the OMC cannot do what is needed to

construct Social Europe and that ‘hard law’ is essential, but also contend that use of

the OMC could undermine efforts to build the hard law they think will be needed.

On close analysis, this debate turns on a number of highly contested issues. These

include the relative effectiveness of the Community Method and the OMC, the goals

for Social Europe, and the nature of the obstacles to reaching those goals. When pro-

ponents of the OMC contend that it is better suited than the Community Method for

certain tasks, they are not only making assumptions about the nature of the tasks and

the capabilities of the open method; they are also implicitly or explicitly making

assumptions about the capabilities of the Community Method. Similarly, when oppo-

nents of the OMC argue that its use should be limited in order to prevent erosion of

the acquis or block future efforts to use hard law, they do so because of beliefs both

about the OMC and the Community Method, as well as assumptions concerning the

proper role of the EU in social policy.

To a large degree, the people in this debate seem to be talking past each other. The

policy discussion should be about the goals for Social Europe and the tasks needed to

reach those goals. The institutional debate should be about the relative capacities of

different modes to handle specific certain governance tasks, and discussion should focus

on evidence relating to those capacities. Yet one often sees people on both sides making

a priori assumptions about goals, and unsupported assertions about the superior capac-

ity of the mode they favour,with little reference to data or alternative views. As a result,

issues sometimes get framed in an either/or fashion: either one should only use soft law,

or one should only employ hard law. Such framing not only cuts off much-needed

empirical inquiry into relative capacity; it also deters exploration of hybrid (hard and

soft) governance modes, and possible synergies between binding and non-binding

mechanisms.

The debate over hard and soft law has recently come to a head. The issue took on

special importance because it was injected into the discussion of the future Constitu-

tion of the European Union, where there has been substantial dialogue concerning the

OMC. The debates in the European Constitutional Convention confirmed what was

already apparent in the literature: the debate is not just about governance modes; it is

also about policy options, with many who favour hard law also holding a very differ-

ent policy position from the proponents of softer methods.

The goal of this paper is not to resolve these debates, but to help clarify the issues,

and identify questions for further work. We want to unpack the arguments on both

sides, identify contestable assumptions, and expose false dichotomies. While we favour

continued use of ‘soft law’ as well as hard/soft hybrids, we recognise that further work

on relative capacities and their relationship to policy goals must be done before any

final conclusions are reached.

European Law Journal Volume 11

344 © Blackwell Publishing Ltd. 2005