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Drawing on a data set of 696 documents competition and state aid judgments,
orders and opinions of the European Courts, and Advocates General opinions
referring to various soft law instruments this detailed textual and doctrinal
analysis investigates the way in which the EU Courts deal with soft law, how the
normative status of these instruments is acknowledged, and how their effects are
recognized. It reveals that several champion instruments feature frequently in
the case law: the guidelines on fines and the leniency notice in competition
law, the state aid instruments on aid to be granted to enterprises in
difficulty, regional aid, de minimis aid, and aid to be granted to SMEs all of
them having in common the fact that they regulate highly litigated areas. The
analysis treats issues such as the following: ; the pathway from judicial
ignorance to judicial acknowledgement of soft law; ; the judicial creation of
legal hybrids ; the judicial review of soft law; the potential use of soft law
as a sword or as a shield in a court of law; the distinction between legally
binding force and legal effects; how soft law can produce legal effects through
the operation of general principles of law such as legitimate expectations,
legal certainty, or human rights; and how the Courts locate soft law on a strong
constitutional pluralist background. Although the analysis might appear to
relate to a fairly narrow spectrum of EU law, in fact the interaction of soft
law and legal principles reaches into many diverse areas of law, and
increasingly so in the twenty-first century. Consequently, this ground-breaking
book will prove immeasurably valuable to any practitioner, academic, or
policymaker interested in how the EU Court is fulfilling once again its
constitutionalizing role, even in an area traditionally lacking formalism and
conventions: that of soft instruments of governance.
