Soft Law in EU Climate Law: The Case Study of the EU ETS Directive

The ‘classical’ claim with regard to the use of soft law made by the Court of Justice of the European Union (CJEU) is that, by endowing soft law measures with hard law effects, the use of soft law in court may have the effect of fostering a competence creep on the part of the EU institutions. There appears therefore to be a process of ‘legalization’ of soft law through judicial interpretation which might endanger the rule of law and the division of competences between the EU and the Member States.

This papers aims at testing this claim empirically by examining the ways in which the European Courts treat soft law measures stemming from EU climate legislation, with the specific case study of the Emission Trading System (ETS) Directive. First, the paper will explore why, in a specific situation of market-based regulation such as that established by the ETS Directive, there is use of soft law in the form of guidance documents. In particular, the paper will consider with what purpose the soft law instruments relevant to the EU ETS Directive have been acted and what content they have, and whether these measures are required by the underlying legislative instrument. Secondly, the paper will examine along which procedural values and framework this soft law been adopted. Thirdly, the paper will assess how the relevant soft law measures have been used by the CJEU and, in particular, what status and legal effects are recognized to them.