Abstract
This chapter illustrates how, together with hard law, soft law has had an important role in expanding the goals of competition and State aid to tackle the big societal challenges of the day. In its second section, by engaging with previous historical accounts of competition and State aid, the chapter will show that soft law has always been sensitive to the changes in policy choices which in turn have been oriented by societal issues. This happens at both the quantitative level (ie higher or lower proportions of soft law in the policy mix) and the qualitative levels (ie the content of soft law). At the quantitative level, non-binding emergency instruments have been promptly and copiously issued to deal with the effects of various crises, such as the financial crisis, the pandemic or the war in Ukraine. At the qualitative level, we see updates of instruments with an emphasis on environmental protection or social rights.
Following from these empirical observations, Section three goes on to assess clashes between soft law and principles of the EU constitutional legal order. The flexibility of soft law, an advantage in regulating societal challenges, means also that soft law suffers from a legitimacy deficit. This is highly problematic if we consider that some of these instruments are dealing with salient issues for the society at large, such as worker’s rights in the sharing economy, or protecting the environment during a climate crisis. The prevalence of soft law in crisis situations (such as the pandemic, or the war in Ukraine) meant that even less legitimacy could have been preserved, as not even usual consultation procedures could not be followed. Being non-binding, soft law is potentially risk-free, allowing for regulatory experiments on issues such as the application of competition rules to novel situations arising from the digital economy. However, the non-binding character of soft law instruments defeats the purpose of bringing clarity for those regulated, meaning that transparency and openness of administrative action are suffering. Finally, crisis instruments might have had a wider impact than tackling the crisis itself, thus challenging important goals of competition and State aid policy. In emerges that wider reflections need to be made as to the links and potential clashes between emergency soft law and other policy instruments, and of course, as to whether emergency soft law is really necessary to deal with certain crises.
Following from these empirical observations, Section three goes on to assess clashes between soft law and principles of the EU constitutional legal order. The flexibility of soft law, an advantage in regulating societal challenges, means also that soft law suffers from a legitimacy deficit. This is highly problematic if we consider that some of these instruments are dealing with salient issues for the society at large, such as worker’s rights in the sharing economy, or protecting the environment during a climate crisis. The prevalence of soft law in crisis situations (such as the pandemic, or the war in Ukraine) meant that even less legitimacy could have been preserved, as not even usual consultation procedures could not be followed. Being non-binding, soft law is potentially risk-free, allowing for regulatory experiments on issues such as the application of competition rules to novel situations arising from the digital economy. However, the non-binding character of soft law instruments defeats the purpose of bringing clarity for those regulated, meaning that transparency and openness of administrative action are suffering. Finally, crisis instruments might have had a wider impact than tackling the crisis itself, thus challenging important goals of competition and State aid policy. In emerges that wider reflections need to be made as to the links and potential clashes between emergency soft law and other policy instruments, and of course, as to whether emergency soft law is really necessary to deal with certain crises.
| Original language | English |
|---|---|
| Title of host publication | The Evolving Governance of EU Competition Law in a Time of Disruptions |
| Subtitle of host publication | A Constitutional Perspective |
| Editors | Carlo Maria Colombo, Kathryn Wright, Mariolina Eliantonio |
| Publisher | Hart |
| Pages | 213-231 |
| Number of pages | 19 |
| ISBN (Electronic) | 9781509951819 |
| ISBN (Print) | 9781509951796 |
| Publication status | Published - 8 Feb 2024 |
