Steering the national implementation of EU law through soft law
The EU restrains national discretion not only through binding rules, prescribing mandatory provisions, but also through soft, non-binding measures, thereby efficiently controlling the domestic application of EU Law. National discretion emerges when EU provisions on implementation do not dictate the decision to be taken in detail. In an increasing number of policy areas, the Commission is actively seeking to stifle national discretion in the Member State's implementation of EU law through the means of soft law instruments. Examples can be seen when the Commission provides guidance on application in the form of directives and communications or prepares and adopts codes of good practice. Such measures- serve to ensure uniformity and consistency in the Member State's application of EU Law and may be considered as quasi-executive rules to secondary EU Law. As a result, the relative "openness" and flexibility of binding law as well as the scope of national discretion are restricted by soft law instruments.
The present research project centers on the increasing importance of the control of EU law implementation through the means of soft law. The project focuses not so much on the potential of soft law to restrict national discretion, but rather on exploring its political and administrative relevance for Member State ability to design policy. Here one can observe that the role of the soft law is quite ambivalent. Because national administrations contribute to shaping soft law they can preserve different options for national action. Thus soft law can reinforce or undermine national discretion in policy design. In principle, the formally non-binding nature of soft law could potentially leave room for national discretion. The analysis of the Commission's use of soft law control over national implementation, in the context of any potential for national policy design, therefore requires a study of mechanisms and structures. Herein we must consider not only the limitations on employing soft law instruments but also of the potential contribution of domestic administrations to their use and limitations. The research approach lends itself to application in various political fields wherein it is necessary to identify global structures in order to explain differences and understand the potential for national legislative action in concrete, sometimes transnational, political spheres.
EU soft law has already been the object of several research studies. Nevertheless, the present project raises new questions from an alternative perspective, focusing on national options for action and the resulting potential of national administrations to act within the multilevel administrative system of the EU. In this sense, the present research approach is rather innovative: existing studies of EU soft law merely explore standardizing and supranational control effects and are often limited to the analysis of competition law.
The research project contributes in this way to unearthing the development process of a supranational executive order. The project concentrates on identifying structures of informal control through soft law instruments and then, explaining their function and effects, including especially those relating to the potential of national administrations to take action.