With the proliferation of European Union soft law instruments since the nineties, the legal bindingness of soft norms has been the subject of some scholarly exploration.
It is clear that there is a group of norms that stands in stark contrast with binding measures of EU law, with the aim of affecting change through persuasion, cooperation or good practices.
While the difference between these two classes of norms clearly exists, the exact markers of the soft/hard law divide are difficult to determine. Terpan stresses that “the difficulty with soft law is the very fluidity of the notion. Paradoxically, soft law is an oft-used concept, which is still given very different meanings as no consensus has emerged in scholarship.” Indeed, various approaches (rationalist, constructivist, hybridity) have been deployed to define and delimit soft law from hard law, even arriving at a sophisticated taxonomy of soft and hard measures. These inquiries are of fundamental importance to formulate an ontology of European soft law. Yet the concept of soft law remains hard to pin down, for EU soft law may be ‘harder’ than expected, imposing certain obligations on the issuing EU institution or on national legislators, courts or authorities, or even affecting the rights of individuals, raising issues of legitimate expectations. Indeed, as Peters observes “soft law can have a variety of legal impacts and effects, direct and indirect ones, stronger and weaker ones.” Several important questions arise: what makes a soft norm? Can the absence of normative or actual bindingness be a useful approach to conceptualize soft law? If so, how do we define bindingness of a norm in general, and in respect of EU law in particular? The conference aims to address these fundamental questions, inviting papers centering on normative, case-law based and comparative research. We welcome papers written from a broad range of disciplines, including works endorsing doctrinal, socio-legal and empirical approaches.
The organizers would invite paper proposals focusing on the following and other related topics:
1) Normative considerations
What is the relationship between bindingness and validity of norms in EU law?
What are the normative sources of bindingness of EU norms?
Determining bindingness of EU instruments in practice: normative and efficiency critique of the substantive test applied by the CJEU; comparative perspectives.
The concept of legal bindingness: Between shades of intensity and uniformity.
2) The approach of national and EU courts
The CJEU’s approach to specific types of soft law measures:
Does the CJEU differentiate between the effects of soft norms of general and individual scope? Is there a difference between Article 288 TFEU soft norms and other appropriate measures from the perspective of ‘bindingness’?
What to make of ‘hybrid’ soft measures, such as directive-like recommendations?
How does the CJEU perceive the legal effects of nonstandard bi-lateral and multi-lateral agreements entered between two or more EU authorities or between EU authorities and third parties (e.g. interinstitutional agreements, Memoranda of Understanding)?
National courts’/authorities’ approach to EU soft law:
How do national authorities and courts understand EU soft law?
What relevance do they attach to it in the exercise of their powers?
Do national courts consider EU soft law to have relevance for their adjudicatory practice; if so, in what way?
3) Comparative approaches
Cross-cutting research, eg. ECN members’ approach to anti-trust soft law; the relevance of OMC in practice etc.
Participants are invited to submit their papers no later than 30 April 2020.
The organizers shall select the papers for the conference by 1 June 2020.
First drafts should be submitted by 1 November 2020.
The conference will be held on 23 November 2020 in Budapest at Pázmány Péter Catholic University, Faculty of Law and Political Sciences (Hungary -1088 Budapest, Szentkirályi utca 28.)
Travel and accommodation costs for those presenting the selected papers will be covered.
Please send your proposal (max. 750 words) and a short CV by 30 April 2020 to:
Proceedings of the conference are planned to be published by a renowned publisher in an edited volume in the summer of 2021.
