European Union Soft Law: Taking Stock of the Transparency Paradox

Ensuring transparency in administration is a declared purpose of EU non-binding guidance documents (or soft law). Through notices and guidelines, the Commission presents its views on the law and clarifies provisions with an open and indeterminate character. Because of its informative function, soft law should enhance the links between institutions and individuals and the connections between European and national authorities. Paradoxically, in practice, soft law undermines transparency. Indeed, soft law comes in an infinite variety of instruments, often long and technical; is issued according to variable procedures; and is usually not translated into all official languages. The effects that such instruments can produce in the absence of legally binding force are largely unclear.

This paper analyses the way in which this paradox is reflected in recent case law of the Luxembourg Courts in competition law. While Courts acknowledge that soft law plays an important role in enhancing transparency, the effects of soft law are judicially recognized in limited circumstances, which are difficult to foresee by the individuals concerned. Moreover, while guidance documents are issued in order to enhance the protection of several principles of law at the same time, only some of those values can be accommodated in the case law of the courts. Transparency is at loss, as, when dealing with soft law, the EU Courts are giving more weight to other principles such as consistency in the application of EU law or national procedural autonomy. The paper puts forward suggestions to achieve a better balance of these goals.