1.Introduction

The management of the exceptional situation caused by the COVID-19 pandemic in the EU, at the level of the European Union, initially primarily occupied the European Commission. The first lockdown in spring 2020 immediately raised legal questions on which the Member States of the EU (MS) expected prompt guidance from the Commission. The Commission reacted quickly. A tried and tested crisis response instrument was the enactment of soft law. The Commission clarified questions that arose, for example, in the application of EU competition law or the EU procurement directives by national authorities, through various soft law texts.With regard to state aids, the Commission published a Temporary Framework for State Aid Measures to support the Economy in the COVID-breakout and revised it six times, see for the consolidated version <https://ec.europa.eu/competition-policy/state-aid/coronavirus/temporary-framework_de> accessed 30 November 2021. For the role of state aids soft law in the pandemic, see D Ferri, ‘The Role of EU State Aid Law as a “Risk Management Tool” in the COVID-19 Crisis’ (2021) 12 EJRR 176. With regard to cooperation of competitors under antitrust rules, the Commission issued a comfort letter to address their cooperation targeting the shortage of critical medicines, Commission, ‘Comfort letter: coordination in the pharmaceutical industry to increase production and to improve supply of urgently needed critical hospital medicines to treat COVID-19 patients’ COMP/OG – D(2020/044003) <https://ec.europa.eu/competition/antitrust/medicines_for_europe_comfort_letter.pdf> accessed 17 December 2021. For guidance from the Commission on using the public procurement framework see Communication C/2020/2078 and R Baratta, ‘EU Soft Law Instruments As a Tool to Tackle The COVID-19 Crisis’ (2020) 5 European Papers 365. Other issues in need of quick clarification concerned the implementation of the fundamental freedoms in the EU, e.g. with regard to seasonal workers in the EU and their unhindered access to the labour market in other MS,Commission, ‘Guidelines on seasonal workers in the EU in the context of the Covid-19 outbreak’ (Communication) C(2020) 4813 final. or with regard to transport or tourism services.Commission, ‘Guidelines on progressive restoration of transport services and connectivity – COVID-19’ (Communication) C/2020/3139 (OJEU 2020 C 169/17) and Commission, ‘Guidelines on progressive resumption of tourism services and for health protocols in hospitality establishments’ (Communication) C/2020/3251 (OJEU 2020 C 169/1). Soft law – traditionally defined as rules of conduct aiming at observance or other practical effects on human behaviour, but neither legally bindingSee eg F Snyder, ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’ (1993) 56 MLR 19, 32; L Senden, Soft Law in European Community Law (Hart 2004) 112 and O Stefan, Soft Law in Court. Competition Law, State Aid and the Court Justice of the European Union (Wolters Kluwer 2013) 15-16. nor justiciable nor enforceable – has in fact been used by the EU for decades to rather informally guide the application of its law by national bodies in its multi-level system; hence they are an administrative instrument and therefore, this contribution uses the notion of administrative soft law.In contrast, there is a different type of soft law of a political nature, see below n. 42, which is outside the scope of this contribution. The reality of the implementation of EU law in domestic legal orders, while increasingly coined by an interaction between national and European level bureaucracies in the application and even enforcement of EU law, still is founded on the prevalence of decentral implementation and application of EU rules by MS authorities. Thus, legal issues of how to apply and interpret EU rules in a quasi-state of emergency following the sudden outbreak of COVID-19 in early 2020 in the EU posed new challenges to domestic authorities, as the management of the pandemic required quick responses and reactions by MS executives which prompted a need for deviation from the normal course of rule application or raised new issues in the application of EU rules for which no precedents were available. In addressing them, the Commission issued hundreds of soft law instruments to set out emergency policies for the MS in many policy fields.M Eliantonio and O Stefan, ‘The Elusive Legitimacy of EU Soft Law: An Analysis of Consultation and Participation in the Process of Adopting COVID-19 Soft Law in the EU’ (2021) 12 EJRR 159, count 197 soft law instruments from March to autumn 2020. This, however, exacerbated the long-standing demand to address the weaknesses of EU soft law, in particular from a perspective of democratic and legitimate exercise of public powers and against the requirements of the rule of law,See eg M Dawson, Soft Law and the Rule of Law in the EU, EUI Working Papers RSCAS 2009/24. which are founding values of the EU legal order (Article 2 TEU). After the last tremendous crisis, the financial crisis, assessments of the soft management instruments used led many scholars to point out their challenges to the EU legal order in view of balance of powers between the EU executive and legislator, its democratic values and input legitimacy.For a brief overview of this literature and its findings, see Eliantonio and Stefan (n 6) 160, 165f.

The present contribution will analyse the challenges to democracy and rule of law posed by the proliferate use of EU soft law against the background of its employment to manage the COVID-19 crisis, with a particular emphasis on the role of EU soft law in decentral implementation of law by its MS. This contribution not only serves to update the long-standing debate about EU soft law‘s legitimacy with a view to its use in the COVID-19 crisis, but specifically focuses on its role in the domestic implementation of EU law. This perspective is relevant for the final purpose of this contribution, i.e. proposing solutions to the identified challenges of EU soft law in its multi-level governance.

Therefore, the paper will first recall the role of soft law in the implementation of EU law from a more general perspective, before their salience and effects for domestic implementation will be illustrated with regard to the soft law instruments specifically introduced in the course of the COVID-19 pandemic. Against this background, the paper then addresses and problematizes the benefits of soft law generally and with a view to COVID-19 measures. Subsequently, the long-standing debate about its challenges for the rule of law and democracy in the EU will be briefly reintroduced and analysed with a view to current developments under the COVID-19 pandemic. In the final section, solutions to these challenges will be proposed. It is submitted that core elements of a suggested general legal framework to address the challenges comprise minimum procedural, transparency and participatory safeguards for the adoption of EU soft law instruments, in order to strengthen its rule of law credentials. Previous research has already addressed EU COVID-19 soft law. Stefan has explored its legitimacy challenges and highlighted the need for further research to address them,O Stefan, ‘The Future of EU Soft Law: A Research and Policy Agenda for the Aftermath of Covid-19’ (2020) 7 JICL 329; idem, ‘COVID-19 Soft Law: Voluminous, Effective, Legitimate? A Research Agenda’ (2020) 5 European Papers 663. and her research together with EliantonioEliantonio and Stefan (n 6). focused on the consultation and participation practice in the adoption of EU COVID-19 soft law. The present contribution is based on their findings and will not re-evaluate consultation and participation practices anew; its genuine contribution is the focus on the salience of EU soft law for domestic implementation and the exploration of solutions to the challenges identified.

2.EU Soft Law in the Implementation of EU Law: Guiding also Domestic Institutions

Soft law instruments have established themselves as important means in the implementation of EU law, by which the Commission not only accounts for its own application policy and its understanding of the interpretation of EU rules (therefore, the Commission being the author, is bound to follow its soft law by virtue of general principles of law such as protection of legitimate expectations and equal treatment).CJEU, Joint Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P, C-213/02 P Dansk Rørindustri [2005] EU:C:2005:408; GC, Case T-68/15 HH Ferries [2018] EU:T:2018:563 para 309; see also W Weiß, ‘After Lisbon, Can the European Commission Continue to Rely on “Soft Legislation” in its Enforcement Practice?’ (2011) 2 JECL & Pract 441, 443f. Likewise, the Commission also intends to influence and even steer the national implementation of EU legislation. In implementation, EU soft law fulfils different functionsSenden (n 4) 457 and A Peters and I Pagotto, ‘Soft Law as a New Mode of Governance: A Legal Perspective. New Modes of Governance Project. Project no. CIT1-CT-2004-506392’ (2006) <https://ssrn.com/abstract=1668531> accessed 6 September 2021, 23. and is employed in all phases of the EU policy circle. Soft law prepares, accompanies and supplements legislation and its application,See M Knauff, Der Regelungsverbund: Recht und Soft Law im Mehrebenensystem (Mohr Siebeck 2010) 378ff; M Rossi, ‘Soft Law im Europarecht – Auswirkungen auf die vertikale und horizontale Kompetenzverteilung’ (2020) 35 Zeitschrift fuer Gesetzgebung 1, 9-12. which reflects different modes and rationales of Europeanisation.C Bérut, ‘The European Union as an opportunity: structures and uses of European soft law in French, Austrian and Irish eHealth policies’ (2021) 44 WEurPol 155, 157-159. Thus, soft law is used in the formulation of policies and in the preparation of EU secondary law and may accompany it. Soft law informs the transposition of EU directives in the MS or escorts their transposition processes. By issuing soft law, the Commission endeavours to increase its impact on decentral application in order to strengthen the uniform and effective application of EU law in all MS. With soft law instruments, the Commission aims to guide the interpretation and application of EU law by providing information on its own interpretative views and its application practice, or by determining further concretisations of EU law, which may also direct the implementation of EU law by national authorities and courts. In this respect, soft law not only steers but also limits the exercise of discretion by the Commission or by national authorities in their exercise of the responsibilities entrusted to them by EU law.CJEU, Case C-424/07 Commission v Germany [2009] EU:C:2009:749 para 76.

Hence, EU soft law employs – according to Dam ­­­ – five ways of impacting the implementation and application of EU law by giving interpretative guidance, implementing guidance, explanatory guidance, technical guidance and by enabling the dissemination of good practices. These categories of guidance describe the gateways for ‘practical and legal effects’ of the use of EU soft law not only for the EU level, but also, and particularly, for the MS, i.e. in the national legal order.C van Dam, ‘Guidance Documents of the European Commission: a Typology to trace the Effects in the National Legal Order’ (2017) 10 (2) REALaw 75.

At first sight, this may come as a surprise since EU soft law in principle, being no part of binding EU law, might be held of having no legal significance for national administrations and courts (as opposed to the Commission as its author). Such a merely legal-doctrinal perspective, however, does not do justice to the practical effects of EU soft law, which also gives rise to certain domestic legal effects of EU soft law, at least in specific situations as the Court of Justice of the European Union (CJEU) recognized (to be addressed below).For a brief critical account of the CJEU´s not quite uniform jurisprudence on the legal effects of soft law for national institutions, see E Korkea-aho, ‘National Courts and European Soft Law: Is Grimaldi Still Good Law?’ (2018) 37 Yearbook of European Law 470 and W Weiß, ‘Reconsidering the Legal Effect of EU Soft Law in National Implementation: Bindingness in an Individual Rights Perspective’ in P Láncos, N Xanthoulis and L Arroyo Jiménez (eds), The Legal Effects of EU Soft Law: Theory, Language and Sectoral Insights into EU Multi-level Governance (forthcoming Edward Elgar 2022) From a practical perspective already, legal practice responds positively to EU soft law instruments and welcomes them as they provide for, or at least further legal clarity, certainty and uniformity of the interpretation and application of EU law in the MS. EU soft law performs important functions in the national application and implementation of EU law, and in this regard, soft law does have a legal relevance, leading, however, not to uniform effects but to a ‘graduated normativity’ of EU soft law before domestic fora.See PL Láncos, ‘A Hard Core Under the Soft Shell: How Binding Is Union Soft Law for Member States?’ (2018) 24 EPL 755, 758 and A Peters, ‘Typology, Utility and Legitimacy of European Soft Law’ in A Epiney, M Haag and A Heinemann (eds), Die Herausforderung von Grenzen.Festschrift Roland Bieber (Nomos 2007) 405, 410.

In a first step, EU soft law invades domestic implementation and application of EU law in informal, informative ways of unfolding practical effect. This is done by communicating ideas and concepts and hence, impacting the cognitive processes and the determination of priorities and preferences in the domestic administrative bureaucracy when applying EU law. This in particular takes place, if the application of EU law is embedded in mutual institutional arrangements with the EU level, as is the case increasingly in the EU´s shared/composite administration.P Craig, EU Administrative Law, 3^rd edn (Hart 2018) 80ff; O Jansen/B Schoendorf-Haubold (eds), The European Composite Administration (Intersentia 2011). Domestic institutions take note of soft instruments issued by EU institutions due to their socialisation and education, but also due to the discursive and informative function and due to the proliferation of EU soft law instruments within the EU and its MS where institutions internalise and transfer ideas from EU soft law instruments into domestic contexts.J Zeitlin, E Barcevicius and T Weishaupt, ‘Institutional Design and National Influence of EU Social Policy Coordination’ in idem (eds), Assessing the Open Method of Coordination. Institutional Design and National Influence of EU Social Policy Coordination (Palgrave Macmillan 2014) 26ff (with regard to the open method of coordination); see also more generally Bérut (n 14) 156. Such processes lead to a very heterogeneous, unstructured and unpredictable appropriation of EU soft law by national institutions if and insofar as they deem it persuasive or reflecting good practice. This way of receiving EU soft law may be particularly relevant in situations where EU law is vaguely drafted, leaves legal gaps or where it uses general legal concepts for whose implementation and application national administrations and courts will search for further guidance in documents or practices elsewhere. Therefore, they also consider relevant EU soft law. The guidance following therefrom will aid their interpretation or be useful to reinforce their interpretative approach and to increase its legitimacy. The practical success of EU soft law in MS, of course, depends on institutional factors like the awareness of the existence of EU soft law within domestic institutions or its usage by higher institutions as a role-model for lower institutions. Empirical studies point to very diverse and policy-specific results in MS.See the national contributions in M Eliantonio, E Korkea-aho and O Stefan (eds), EU Soft Law in the Member States. Theoretical Findings and Empirical Evidence (Hart 2021); for example, PL Láncos, ‘The Approach of Hungarian Authorities to Soft Law: On the Road to Where?’ 177ff reports about generally good reception of EU soft law by Hungarian institutions in competition law, but much lower awareness in environmental law. In contrast, in Germany authorities and courts often follow EU guidelines in the areas of competition and environmental law, but less so in social policy and in financial markets, see M Hartlapp, A Hofmann and M Knauff, ‘Soft Law in Germany: Still Opposing Dynamics in Status and Effect’ 155ff.

Interestingly, in this way, EU soft law can lead to harmonisation or approximation of domestic administrative practices that the EU did not intend, as in the case of soft law issued for informative purposes only in order to announce and reason the implementing policy and the exercise of the issuing institution’s discretion. An example of this are the Guidelines of the Commission on the method of setting fines in EU competition lawCommission, ‘Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003’ OJEU 2006 C 210/02. that were issued by the Commission with respect to its own sentencing practice at EU level in its supranational implementation of EU competition rules. Nevertheless, these guidelines influenced several domestic competition authorities in a way so that they aligned their fining practice to the Commission’s one,See PL Láncos, ‘The Power of Soft Law: Spontaneous Approximation of Fining Policies for Anti-competitive Conduct – Part 1’ (2019) 40 ECLR 538 and N Dunne, ‘Convergence in Competition Fining Practices in the EU’ (2016) 53 CMLRev 458. even though this was not the intention of the guidelines (they were not issued to address also national sanctioning of EU competition law), and even though MS enjoy considerable national organisational and procedural autonomy also in the enforcement of EU competition rules,Nevertheless, beyond fining policies, there was considerable voluntary convergence of domestic antitrust procedures and practices also with regard to inspections in business premises, interim measures, commitment decisions and sector inquiries with EU procedural rules under Regulation 1/2003; see Commission, ‘Staff Working Paper Accompanying the Communication from the Commission to the European Parliament and Council – Report on the Functioning of Regulation 1/2003, COM(2009)206 final, SEC(2009) 574 final 61-62 and K J Cseres, ‘Comparing Laws in the Enforcement of EU and National Competition Laws’ (2010) 3 (1) EJLS 13. ’ at least until recently.The so-called ECN+ Directive 2019/1 of the European Parliament and of the Council to empower the competition authorities of the MS to be more effective enforcers (OJEU No L 11/3) brought about approximation obligations which considerably reduce the MS procedural autonomy in competition enforcement.

Furthermore, EU soft law may be considered by domestic institutions in the implementation of EU law because – though formally non-binding – it comes along with ‘soft’ enforcement mechanisms (lacking judicial enforceability) which do not oblige compliance, but a reaction from MS authorities (usually administrative bodies, but sometimes also courts) if they do not want to follow EU soft law. Manifestations of this are ‘comply or explain’ mechanisms or mutual expectations which require the domestic authorities to report, to respond, to cooperate or to otherwise engage with ideas, project or proposals uttered by the EU level.See F Coman-Kund and C Andone, ‘Chapter 8. European Commission’s Soft Law Instruments:

In-between Legally Binding and Non-binding Norms’ in Popelier et al (eds), Lawmaking in Multi-level Settings. Legislative Challenges in Federal Systems and the European Union (Nomos 2019) 173, 177. For the legal effects of comply and explain obligations with regard to specific EU soft law instruments for national regulatory agencies in EU financial market regulation (as in Article 16 (3) of Regulation 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), 2010 OJEU L 331/12), see A-K Wolff, Cooperation Mechanisms within the Administrative Framework of European Financial Supervision (Nomos 2019) 166 and M Simoncini, ‘Legal Boundaries of European Supervisory Authorities in the Financial Markets’ (2015) Yearbook of European Law 319, 326 f. To this category of soft law’s reception by national institutions, one may also count soft law that accompanies EU directives to steer domestic transposition processes. The piece of soft law will be received positively by domestic institutions as it may reduce complexity and explain the hard legal obligations of the directive in order to increase legal certainty.M Hartlapp and A Hofmann, ‘The Use of EU Soft Law by National Courts and Bureaucrats: how Relation to Hard Law and Policy Maturity matter’ (2021) 44 WEurPol 134, 137. Even though the steering effect of such EU soft law may be mainly directed at the transposition of the relevant EU directive into national law by domestic legislators, its steering effect is not exhausted once national law is adopted. EU soft law may still be relevant for the interpretation and application of the new national rules by domestic institutions in their endeavour to interpret them in compliance with EU directives, although authoritative interpretation of EU law can only come from the CJEU.

3.Guidance for MS by EU COVID-19 Soft Law

The above practical and legal effects of EU soft law for the domestic implementation of EU law have also been employed by the Commission in the management of the COVID-19 crisis, as will be explained in this section. The Commission has issued a multitude of soft law instruments across a diverse range of policy fields,For an overview over the policy areas affected, see O Stefan, ‘The Future of EU Soft Law: A Research and Policy Agenda for the Aftermath of Covid-19’ (2020) 7 JICL 329, 333. The EU has established a general website about its COVID response, see Commission, ‘Coronavirus response’ <https://ec.europa.eu/info/live-work-travel-eu/coronavirus-response_en> accessed 16 December 2021. in particular in the area of public health,For an overview, see the documents listed with regard to health policy, Commission, ‘Public health’ <https://ec.europa.eu/info/live-work-travel-eu/coronavirus-response/public-health_en#documents> accessed 1 December 2021. competition policy and economic policy, including trade and investment,For an overview, see Commission, ‘Jobs and economy during the coronavirus pandemic’ <https://ec.europa.eu/info/live-work-travel-eu/coronavirus-response/jobs-and-economy-during-coronavirus-pandemic_en> accessed 1 December 2021. with a view to coordinate MS reactions and achieve convergence in the domestic legal responses to the pandemic and clarify legal issues in the application of EU law.O Stefan, ‘COVID-19 Soft Law: Voluminous, Effective, Legitimate? A Research Agenda’ (2020) 5 European Papers 663, 664. A communication by the Commission as early as 13 March 2020 dealt with a coordinated economic response to COVID-19,Commission, ‘Coordinated economic response to the COVID-19 Outbreak’ (Communication) COM (2020) 112. only few days after the MS had fully recognized its character as a pandemic. A week thereafter, the Commission issued the first version of its Temporary Framework for State Aid Measures,Commission, ‘Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak’ (Communication) COM (2020) 1863. which quickly became adjusted to current needs, in particular to the demand for state aids for recapitalisation of undertakings and support for small and start-up companies, and has since then been adjusted several times, most recently in November 2021. This Framework sets out more detail concerning the criteria under Article 107 (3) TFEU for approval of state aids by the Commission and allows for expedited procedures.

Apart from general guidelines that address specific issues in a general quasi-legislative way, the Commission also issued individual letters to clarify a specific category of cases, like the cooperation of undertakings in the pharmaceutical and medical equipment sector,Commission, ‘Temporary Framework for assessing antitrust issues related to business cooperation in response to situations of urgency stemming from the current COVID-19 outbreak’ (Communication) COM (2020) 3200, 2020 OJ.EU C 116/7. to handle challenges caused by COVID-19 for the stability of their supply chains.

Beyond policy-specific guidelines, the Commission was also involved in managing the pandemic more generally. In April 2020, the Commission issued a Joint European Roadmap towards lifting COVID-19 containment measures,Commission, ‘Joint European Roadmap towards lifting COVID-19 containment measures’ (Information) C/2020/2419, 2020 OJ.EU C 126/1. which gave a set of general policy recommendations to MS on how to gradually lift containment measures (i.e. end the lockdowns) and to break transmission chains and limit the spread of the disease. These recommendations intended to guide domestic institutions, in particular national governments, in their endeavours. In this Roadmap, the Commission promised to continue ‘providing EU level tools as well as guidelines, both for the public health and the economic response’. The Commission reminds the MS that ‘it will be important that [they] support and use the instruments available at the EU level’. The Commission also announced to

‘continue to analyse the proportionality of measures taken by MS to deal with the COVID-19 pandemic as the situation evolves and will intervene to request the lifting of measures considered disproportionate, especially when they have an impact on the Single Market.’For all of these quotes, see ibid p 11.

Here, the Commission clearly expresses its expectation that the MS follow its advice and its intention to intervene if domestic lockdown measures are disproportionate, especially, but not limited to when they have a negative impact on the EU Market as one of the centrepieces of the EU’s essence. This particularly illustrates the Commission‘s attitude towards using soft law to trim the MS´ reaction to what it considers required by EU law and to restrict them in the exercise even of leeway actually granted to the MS by the public health exception to the fundamental freedoms.

4.Soft Law’s Benefits, also in the Management of the COVID-19 crisis

4.1.Certainty, but Quick and Flexible

Exceptional situations sometimes raise novel legal problems for which relevant stakeholders look for more or less reliable guidance from responsible administrations. Hence, soft law is an instrument, even though not formally binding, which contributes to clarifying what the law demands in a given situation and what it requires from companies or administrators. In this way, soft law may contribute to a type of legal certainty and security which flows from the informal guidance stakeholders or bureaucracies infer from soft law instruments, and which usually is received positively as it explains and interprets EU law in new circumstances. Hence, soft law supports the effectiveness of hard legal rules and principles. The informal guidance the Commission offered through its COVID-19 soft law in competition and procurement policy, for example, has been welcomed wholeheartedly by stakeholders, companies and competition enforcers.R Baratta, ‘EU Soft Law Instruments As a Tool to Tackle The COVID-19 Crisis’ (2020) 5 European Papers 365, 370f; G De Stefano, ‘Covid-19 and EU Competition Law: Bring the Informal Guidance On’ (2020) 11 JECL & Pract 121.

Beyond this, soft law has further advantages from the EU’s point of view: the Commission can enact and amend it quickly, thus allowing it to instantly respond to situational changes and adjustment of policies, as required in crises and as happened in the COVID-19 case as well. Hence, soft law has proven to be a valuable governance tool. The Temporary Framework in state aids, for example, was amended six times to meet the demands of the MS and to adjust the Framework according to the needs as the crisis evolved.

There are no lengthy legislative procedures to go through. In principle, there are also no fixed rules for the enactment of soft law instruments by the Commission (as opposed to the Council, see insofar Article 292 sentence 2 and 3 TFEU); there is no prescribed procedure in place that would provide for participation and information rights or consultation procedures. Thus, the flexibility and speed of enacting soft law makes it an ideal crisis response tool.

Also in substantive terms, soft law might be more flexible than hard law due to its lack of binding effect. MS might decide to depart from the course of action recommended by the Commission in its guidelines due to local peculiarities or national specificities,Stefan (n 31) 664. and they can do so and justify it much easier than under the reign of hard rules. For, soft law does not require compliance but allows for informed consideration and implementation if need be.

Additionally, soft law texts may be received with greater acclaim compared to general, rather broad or even vaguely drafted legislative provisions and stipulations of secondary law. This is because soft instruments might rule a situation on the basis of technocracy, expressing experts’ knowledge and practical approaches to urgent needs, so that rather specific guidance by soft law instruments might be perceived more suitable to guide through a crisis than broad legislative provisions.

4.2.No Need to Observe EU Competences?

A further advantage of soft law, compared to hard law, might concern the competence question. In view of the EU principle of conferral (Article 5 (1) TEU, Article 13 (2) TEU), EU institutions are only allowed to adopt legal acts if they act within their conferred competences. Hence, the competence issue is twofold here: the EU must be competent for the relevant policy field, and within this competence, the acting EU institution must have an institutional competence to act in a specific form.Hence, one can distinguish a substantive legal basis that grants a competence to the EU from a procedural legal basis that indicates the legal instruments available, the responsible institution and the procedural steps to be followed. In order for an EU institution to act, both types of competences must be present, and in many TFEU provisions, both types of competences are granted by the same paragraph. The question that comes up here with regard to soft law, is whether these two requirements also apply to the adoption of soft law instruments by an EU institution. Even though a soft law act does not develop formal legal bindingness, it nevertheless may entail, in specific circumstances, certain legal obligations also for domestic institutions, such as a duty to consider it.For more detail on the bindingness of soft law in the MS, see E Korkea-aho, ‘National Courts and European Soft Law: Is Grimaldi Still Good Law?’ (2018) 37 YEL 470 and PL Láncos, ‘Hard Core in a Soft Shell: How Binding Is Union Soft Law for Member States?’ (2018) 24 EPL 755. Consequently, the enactment of soft law cannot be completely detached from the question of the existence of an EU competence (both generally as well as for the acting EU institution) for the adoption of a soft law act. In some rulings, the CJEU has rejected any binding effect for national authorities exactly with reference to their procedural autonomy, which places transposition and implementation within MS competence.See eg CJEU, Case C-428/14 DHL Express (Italy) und DHL Global Forwarding (Italy) [2016] EU:C:2016:27 para 57. Any obligation under EU law to follow soft law in this respect, even if only in the sense of an obligation to take account of it, encroaches on this national competence. In addition, there is a common objection that without a commitment of competences also for soft law, the Commission could thus be able to circumvent the constitutional obligation of the EU institutions to comply with the requirements for adopting legislation and act in areas without EU legislative competence or no EU competence at all. Consequently, an EU institution adopting soft law is bound to do so only in policy fields in which the EU has competences of whatever kind (see Article 2-6 TFEU). Acting in areas without any connection to EU competences is illegal. Secondly, the acting EU institution also needs an institutional competence. Insofar, the requirements for establishing a competence for the EU institution to adopt soft law might be reduced compared to the adoption of secondary law, particularly in view of Article 292 TFEU, a provision newly introduced by the Lisbon Treaty. Primary law now expresses in Article 292 TFEU that the requirements for a competence for EU institutions to adopt recommendations must not be set as specific as for legislative or executive law-making, and the Treaty here at the same time introduces a differentiation depending on the task attributed to an EU institution. For, pertaining to Article 292 TFEU, the Council and the Commission can both make recommendations; this power is not restricted further, so that Article 292 sentence 1 and sentence 4 may basically serve as the Treaty provision granting a general competence to adopt soft law instruments to the EU executive institutions, even beyond the explicitly mentioned form of recommendations. The situation is different with regard to the European Central Bank (ECB), which can only make recommendations in the specific cases provided for in the Treaties. The competence of the ECB to adopt recommendations is thus more restrained as it needs an explicit primary law basis, while the adoption of soft law acts by the Commission is generously granted, not least due to its general mandate as executive and administrative institution in Article 17 (1) TEU. Therefore, one must infer from Article 292 TFEU that the Commission has a rather general competence to issue recommendations, which applies to all sorts of soft law instruments as notifications, communications and the like are not mentioned in the TreatiesThere are some very specific exceptions that do not contradict the above statement: Guidelines are specifically mentioned in Articles 156, 168, 181 TFEU which reflect areas of mere EU coordination competence so that one cannot infer an argumentum e contrario to the effect that outside these specific rules guidelines are prohibited. Protocol 1 mentions green and white papers and communications as Commission consultative documents. The guidelines provided in Article 171 TFEU are of legislative and not of soft kind, see Article 172 TFEU. The Council guidelines foreseen in Art. 26, 121, 136, 148 TFEU are political ones and do not reflect the type of Commission administrative soft law which form the subject of this paper. (therefore, it is not surprising that it is similarly absent from Article 292 TFEU). As other soft instruments are not different in their legal effects from recommendations, the same principles apply. Furthermore, it is long standing Treaty practice, reflected in previous provisions, for the Commission to enjoy a broad competence to adopt recommendations and opinions in any area covered by the Treaties and in different forms, not only where primary law explicitly provided for it, but wherever the Commission felt a necessity (Article 155, 2^nd ident EECT/ECT-Maastricht, later Article 211, 2^nd ident ECT-Amsterdam/Nizza). In competition policy, the Commission is the pivotal implementing body whose competence is explicitly enshrined in primary and secondary law (Articles 103, 105, 108 TFEU; Regulation 1/2003; Regulation 2015/1859). Accordingly, the Court explicitly referred to the competence of the Commission ‘to adopt rules of practice, such as those contained in the 2002 Leniency Notice, by which that institution imposes a limit on the exercise of its discretion under those articles’.CJEU, Case C-619/13 P Mamoli Robinetteria v Commission [2017] EU:C:2017:50 para 51. Thus, the Commission enacting soft law instruments – due to their lack of formal bindingness – is not obliged to observe the limits of competences and tasks conferred on for the adoption of formal legal acts. It still has to, however, observe EU competences by acting within one of the EU policies. The latter means that the Commission may still adopt soft law even in EU policy areas, in which the adoption of legislation or the harmonisation of national law is excluded in the Treaties (as e.g. in Articles 165 (4), 167 (5), 168 (5) TFEU). Is it sufficient, but necessary, that the Commission acts in any area covered by the Treaties, as spelled out in Article 211, 2^nd indent ECT. Even though Article 292 TFEU does not contain such requirement, it can be inferred from Articles 5 (2) and 13 TEU.In the opinion of AG Kokott, Case C-501/11 P [2013] EU:C:2013:248, para 164, Article 292, sentence 4 TFEU is the successor of Article 211 2^nd ident ECT. Interference with MS competence by Commission soft law, for example with regard to their decentral implementation of EU law, hence may be easier to justify than the transfer of formal legal implementing powers on the Commission, which – according to Article 291 (2) TFEU - may only be conferred upon the Commission in a legal act in case of need for uniform conditions for implementing EU legal acts. An example for acting by soft law within EU policies without hard legislative competences in the COVID-19-crisis management are the soft law instruments in policy fields in which the EU hardly has any rule-making competence at all, such as in the area of supportive, coordinative or supplementary policies in the sense of Article 6 TFEU. The Commission adopted soft instruments that deal with recommendations to the MS on how to combat and exit COVID-19, as the management of pandemics and states of emergency is the genuine competence of the MS (limited EU competences to foster domestic cooperation are provided for in Article 196 TFEU). Nevertheless, the Commission adopted recommendations on a common EU toolbox that sets out a process towards the adoption with the MS of a common toolbox aiming at a coordinated approach for the use of mobile apps for warning and contact tracing and for predicting the evolution of the virus.Commission, ‘Recommendation on a common Union toolbox for the use of technology and data to combat and exit from the COVID-19 crisis, in particular concerning mobile applications and the use of anonymised mobility data’ Commission Recommendation (EU) 2020/518 (2020 OJ.EU L 114/7). Instead of citing specific EU competences, the Commission based its action on Article 292 TFEU generally and on the EU principle of solidarity (‘An exceptional crisis of such magnitude requires determined action of all MS and EU institutions and bodies working together in a genuine spirit of solidarity’).ibid recital 1.

Another area for recourse to soft law are those EU policies where the EU has only limited rule-making competences due to very restraint mandates in the TFEU or due to clear carve-outs of broad aspects from the EU´s legislative competences, such as in certain areas of shared competences. In health policy, for example, the EU cannot harmonize national legislation, but the Council may adopt recommendations for certain purposes (see Article 168 (4) to (6) TFEU). Nevertheless, also the Commission adopts soft law instruments in health policyFor an overview of the related soft law, see again Commission, ‘Public health’ <https://ec.europa.eu/info/live-work-travel-eu/coronavirus-response/public-health_en#documents> accessed 1 December 2021. that directly impact MS actions.KP Purnhagen et al, ‘More Competences than You Knew? The Web of Health Competence for European Union Action in Response to the COVID-19 Outbreak’ (2020) 11 EJRR 297.

Thus, the COVID-19soft law practice by the Commission confirms that while in most cases its soft law remains within the boundaries of EU competences as they are defined only very generously and much less strict than the requirements for hard rule-making, soft law stretches the limits of EU competences and sometimes might be seen to go beyond. Soft law which stays within the realm of EU competences as it does not lose the connection to EU policies (even though merely cooperative or supportive ones) is employed by the Commission to expand its institutional competences, which causes concern from a constitutional perspective with regard to the EU´s institutional balance of powers.

5.Challenges, and Some Proposals to Address Them

5.1.Soft Law’s Challenges to Democracy and the Rule of Law in the EU

The constitutional problems posed by informal guidance instead of hard legislation could be observed in the COVID-19 crisis. The critique refers to the shifts soft law brings about in the balance of power in favour of the executive as the European Parliament (EP) is left out, and consultations with stakeholders or even MS take place only at a rudimentary level, as analyses of COVID-19 soft law demonstrate.For an analysis of the deficits of COVID soft law with respect to parliamentary involvement and lack of consultations, see Eliantonio and Stefan (n 6) 166ff and Stefan (n 28) 336ff. This reflects general warnings that states of emergency empower the executive at the expense of the legislative.C Bjornskov and S Voigt, ‘The Architecture of Emergency Constitutions’ (2018) 16 ICON 101, 125. Guidance of crises by soft law, allegedly the usual governance template for the handling of crises in the EU, thus adds to the general concern of the EU exhibiting a democratic deficit. Such blame could become even more proliferate by ever more reliance on soft law.

The drug of supposedly quick problem-solving instead of lengthy debates in a legislative process can lead to habituation processes, even to a one-sided fixation on the advantages of soft law. A sign of this is the call for more informal guidance also in the future, in particular with a view to novel issues of e.g. adapting EU competition law to the requirements of the new Green Deal and the challenges posed by the digital economy, which was raised during the COVID-19 pandemic.See G De Stefano, ‘Covid-19 and EU Competition Law: Bring the Informal Guidance On’ (2020) 11 JECL & Pract 121, 122. Such proposals must be treated with utmost caution. The fundamental issues raised by the implementation of the Green Deal or the adaptation of the application of EU competition rules to the exigencies of novel digital business models are not to be compared with the urgencies of exceptional situations as caused by COVID-19. Rather, the fundamentally new orientations for competition and economic policy demanded by the implications and implementation of the Green Deal or of the Digitisation of the economy must be clarified in the usual political and legislative processes provided for in the EU as they raise fundamental questions with regard to the future course of EU policies. Otherwise, the abnormal situation could prevail under which crisis governance tools would become permanent mechanism of rulemaking. Such development clearly would deteriorate the legitimacy of EU governance because the enactment of soft law instruments of general application entails the risk of undermining or circumventing the legal safeguards of the usual procedures of rulemaking in the EU. In particular, legislative processes have a higher legitimacy in terms of (at least) input and throughput legitimacy due to their institutional setting (legislative procedures take place in more or less directly elected institutions); there are detailed procedures and legislative frames that have to be followed which guarantee transparency, provide participatory capacities, and involve diverse institutions.

The EP clearly identified the constitutional problems of using soft law in a resolution of 2007.European Parliament resolution of 4 September 2007 on institutional and legal implications of the use of ‘soft law’ instruments (2007/2028(INI)). It recognized a deficit in judicial protection and for the protection of rights for individuals, and held that the use of soft law, which rightly was identified as the key decision-making mode of traditional international organizations lacking formal law-making capacities, was a clear contradiction to the unique Community method. Hence, it opined that where the EU has legislative competence, the adoption of legislation is the proper way to act, having to respect subsidiarity and proportionality, and soft law should neither be used as a surrogate for it nor to replace the EU´s lack of legislative competence. The Commission is not permitted to circumvent the pertinent legislative procedures and bodies and to put specific policy options into effect. In this respect, the EP´s criticism is clearly directed against central interpretative and supplementary functions of soft law. The EP also urged the Commission to make efforts ‘to guarantee transparency, visibility and public accountability’ in adopting soft law.ibid para 7. The EP also alluded to the problem for the balance of powers between legislative and executive institutions, reminding that “translating the Treaty into reality is the responsibility of the legislature”.ibid para 11. Consequently, the EP demanded its consultation before the adoption of soft law, also with a view to more effective monitoring of the Commission.ibid para 14, 16 ff.

5.2.Proposal for a General Framework for the Adoption of EU Soft Law

These challenges the use of soft law places to the constitutional order of the EU, in particular to its democratic legitimacy and the salience of the rule of law in the EU, could be addressed by a general legal framework on the adoption of soft law by the Commission.Also Eliantonio and Stefan (n 6) 174-175 demand a general legal frame that outlines detailed procedures of parliamentary involvement and consultations with stakeholder and national level. Consultations should be subject to short deadlines, and parliamentary input be sought by using the urgency procedure in Article 163 EP Rules of Procedure. Also publication of consultation documents and clear communication about it thereafter is demanded. It is submitted here that this could be done in the legal form of a legislative act, based on Article 298 TFEU that includes a legislative mandate for establishing a European administration, which could be used for the provision of procedures for the adoption of informal, non-binding executive acts. With regard to the rules to be enshrined in such an act, one should distinguish between adoption of soft law in normal circumstances and urgent EU soft law as crisis response, with slightly different rules for the latter category in order to reflect the need for urgency and flexibility. Such a legislative framework has to set out some basic legal principles and procedures for the adoption of EU soft law, also in reflection of the right to good administration (Article 41 CFR) and duty of transparency (Article 15 TFEU), which must be respected by the EU institutions also when acting informally, at least with regard to their basic requirements as an objective obligation for the executive. Otherwise, it would be contradictory to enshrine a right to good administration or a duty of transparency but not apply it – in a possibly modified way – to administrative acts adopted outside formal procedures. As an alternative to a legislative act, an Interinstitutional Agreement could be agreed between the Commission, the Council and the Parliament. It is, however, preferable to use such an interinstitutional agreement only for hammering out concreter details of the proposed legislative act, reflecting their usual function (see Article 295 TFEU). As interinstitutional agreements usually belong to the category of soft law,F Snyder, ‘6. Interinstitutional Agreements: Forms and Constitutional Limitations’ in G Winter (ed), Sources and Categories of EU law. A Comparative and Reform Perspective (Nomos 1996) 453, 459ff. it is not feasible to use such an agreement for addressing the above-mentioned rule of law challenges.

a.Subsidiarity vis-à-vis Executive Rulemaking

The first principle to be included in the legislative framework for the adoption of Commission soft law is its subsidiarity vis-à-vis hard executive rulemaking. In countering the concerns over soft law replacing hard law, the Commission should be under a clear obligation to give priority to the use of instruments of executive rulemaking under Article 290 and Article 291 TFEU. The Commission very often is mandated in legislative acts to adopt delegated or implementing acts under Article 290 and 291 TFEU respectively, in order to amend non-essential provisions of EU legislative acts or to provide for implementing rules. Employing these mandates should clearly be preferred over the use of soft law because executive rulemaking under Article 290 and 291 TFEU is subject to clear procedural stipulations and constitutional requirements. They are subject to control by the EP and the MS. Hence, despite their weaknesses,See W Weiß, ‘The Future of EU Executive Rulemaking’ (2019) 44 ELRev 337, 354ff. these formal legal instruments serve the democratic legitimacy of EU rulemaking and its respect for the rule of law much better than EU soft law and have similar benefits as soft law with regard to the inclusion of technocratic expertise, flexibility and ease of procedures. Executive rule-making is subject to the requirements of the existence of rather clear legal bases, compliance with procedures provided for therein, and is subject to control mechanisms. The relevant rules also contain provisions for decision-making in case of urgency, exceptional situations and expedited procedures in case of implementation rules, see Articles 7 and 8 of the Comitology-Regulation 182/2011; these rules provide for workability of the normal institutions also under exceptional circumstances. If, nevertheless, the Commission decides not to use delegated or implementing rulemaking, the Commission must be obliged to give reasons and explain why it had to have recourse to soft law instruments instead.

b.Parliamentary and Member State Control

The second type of provisions to be embraced relate to parliamentary involvement and control mechanisms in order to remedy the fears of illegitimate quasi-rulemaking in the EU. The legal framework for the Commission´s implementation of EU legal acts, set out in Article 291 (2) and (3) TFEU and in the Comitology Regulation 182/2011, provides for a – though limited – control by the EP and by MS representatives in Comitology committees. These rules may serve as a source of inspiration for the control mechanisms to be enshrined in the general framework for EU soft law because Commission soft law usually interferes with the domestic implementation of EU law so that the situation is similar to that of Article 291 TFEU. Hence, the general framework should oblige the Commission to consult with MS representatives prior to its adoption of soft law, in a way comparable to the advisory procedure under Article 4 Regulation 182/2011. In case of urgency, e.g. in a crisis, ex-ante information and ex-post consultation at least with MS governments within the strict deadline of two weeks may be provided for (two weeks are the deadline for ex-post information of MS foreseen in Article 8 (3) Regulation 182/2011 on urgency procedures). With regard to the EP involvement, the EP´s control rights under Article 11 Regulation 182/2011 enable the EP only to indicate that in its view the draft implementing act exceeds the implementing powers provided for in the basic act. Then, the Commission is required to review its draft act and inform the EP whether it intends to maintain, amend or withdraw the draft. A comparable, even though rather weak, type of EP control over Commission soft law would represent a considerable step forward compared to the current situation. Hence, the general framework should provide for a consultation mechanism with the EP, consisting of an early information about the draft text and a right for the EP to adopt recommendations within four weeks. The EP is capable of responding quickly as its Rules of Procedure (Rule 163) allow for urgent debates in case of legally binding acts, which could be amended to include soft law acts. The EP´s objections can then deal with the content of the soft law act, with relevant legal requirements, or the question of the need for the adoption of a soft act, including the issue of subsidiarity vis-à-vis executive rulemaking. The Commission should be under an obligation to consider these reprimands and indicate how it dealt with the issues raised before it can adopt the soft law instrument. In particular instances, e.g. in policy fields in which there hardly exists any EU legislation, the framework might even grant a veto right to the EP within a similarly strict deadline. In case of urgency, the Commission can adopt the soft law instrument quickly, and the consultation process takes place ex-post. Ex-post consultation must require quick information for the Parliament, a duty for the EP to deliver any comments within a strict deadline of two weeks and an obligation for the Commission to consider them and make necessary adjustments within another two weeks thereafter.

c.Consultations with Stakeholders

A third type of provision to be included might be a duty to consult with stakeholders before adoption of the soft law instrument, as demanded in literature.See again Eliantonio and Stefan (n 56). As part of the Better Regulation Agenda, the Commission has committed itself to consult or at least to enable stakeholders to provide feedback on draft delegated or implementing acts during a period of four weeks.See Better Regulation Guidelines, Commission Staff Working Document SWD (2017) 350, 40. One must also apply this to the adoption of soft law, at least in situations where soft law interferes with the implementation of EU law; merely preparatory soft law is outside the scope of this obligation. The formal requirements for consultation may not reach the standard required for legally binding acts. A duty on part of the Commission to provide an opportunity for stakeholders to provide feedback to a draft soft law instrument appears sufficient. Again, in case of urgent measures, such opportunity must be available in hindsight within a feasible timeframe in order to avoid delay of the issuance of the soft law instrument.

d.Temporary, Transparent and Reasoned

Further provisions to be enshrined in the general framework should pertain to limited duration of soft law instruments, provide for transparency about their adoption process and contain a duty to give reasons for the choice of a soft law instrument. Soft law should only have a limited temporal applicability. In case of urgency measures, soft law should automatically expire after six months, as provided for in Article 8 (2) Comitology Regulation 182/2011 with regard to implementing measures adopted in urgency procedures, combined with the possibility to prolong it if need be. The required transparency should be implemented through a duty to publish information about the procedures followed in the drafting process, in particular with regard to consultations with the EP, the MS and stakeholders, briefly indicating also their results. The duty to give reasons should – beyond the abovementioned issue of giving priority to executive rulemaking – include an obligation to indicate a legal basis for the soft law instrument (even though it may only refer to an EU policy field, see above 4.2), to report about the general situation that led to its adoption, and to state the general objectives to be achieved. In this way, the Commission would be compelled to hold itself accountable for its actions. In case of urgency measures, the duty to provide procedural transparency and to state reasons can be mitigated. The ReNEUAL Model Rules on EU Administrative Procedure may serve as a useful inspiration insofar, as they provide for the procedural rules to be followed in case of executive rulemaking of general application.‘ReNEUAL. Research Network on EU Administrative Law’ <http://www.reneual.eu/projects-and-publications/reneual-1-0> accessed 8 December 2021. Article II-6 of the ReNEUAL Rules on General Administrative Decision-Making deals with expedited procedures. Accordingly, the EU authority adopting the (non-legislative) act without prior notification and consultation of the public, shall make public that an act has been adopted by the expedited procedure and give reasons, and shall start the necessary consultation and participation procedure within a period of four weeks after the adoption of the act, and shall thereafter undertake the necessary amendments. Acts adopted under the expedited procedure should not be valid for more than 18 months.

e.Clarifying Domestic Legal Effects

Another challenge posed by EU soft law is its unclear legal effect before domestic administrations and courts. Their legal effect is not sufficiently clarified in the twists and turns in the CJEU case law. Thus, the adoption of a general legislative framework for EU soft law gives an opportunity to clarify this issue by including a provision that entails a template guidance mechanism (unless otherwise provided) such as a duty of domestic administrations and courts ‘to comply or explain’. Hence, national institutions would be under a legal obligation not only to consider EU soft law but to comply with it, unless they can explain their deviation.See the approach adopted by Advocate General Kokott, Opinion in Case C-226/11 Expedia [2012] EU:C:2012:544 para 39, who – in contrast to the CJEU in this case – stipulated an obligation to consider the Commission’s assessments and to indicate reasons for departure ‘which can be judicially reviewed for any divergences’. Such approach would come significantly closer to the legal force of a ‘comply or explain obligation’, which EU soft law has for the issuing EU institutions themselves. If a clear legal provision on the effect of soft law on domestic institutions appears unfeasible, a milder approach would be a duty of the Commission to engage with domestic authorities in order to discuss the domestic effect of a soft law instrument.For this proposal see Stefan (n 31) 669.

The related challenge by EU soft law to the rule of law is the lack of judicial review. The EP in its above-mentioned resolution of 2007, drew attention to the fact that

‘EU institutions may only act in accordance with the principle of legality, that is to say, where a legal basis confers competence and within the limits of their powers, and whereas there is a European Court to ensure that they do so’.

Thus, responsibility before Courts and accountability of the Commission in its capacity as soft law maker are relevant to ensuring the respect for the rule of law in the EU. Due to its lack of legal bindingness, soft law is, by and large, not accepted by the CJEU as a challengeable act in actions for annulment.For the inconsistencies in the case law of the CJEU insofar see A Arnull, ‘Recommendations and Judicial Review’ (2018) EUConst 609, 618 ff. The approach of the CJEU, however, is more relaxed under the preliminary reference procedure because Article 267 TFEU confers on it jurisdiction to deliver a preliminary ruling on the validity and interpretation of all acts of the EU institutions without exception.CJEU, Case C-16/16 P Belgium v Commission [2018] EU:C:2018:79, para 44. The mere fact that a recommendation is formally designated so and is based on Article 292 TFEU does, however, not automatically rule out its classification as a challengeable act in all contexts. The latter, however, is of little help in the soft law context as domestic courts are not under a legal obligation to apply or even comply with soft law; CJEU case law is not even consistent on the question of whether national courts must or only may consider EU soft law.See CJEU, Case C-322/88 Grimaldi [1989] ECR 4407, paras 16, 18 versus CJEU, Case C-226/11 Expedia, EU:C:2012:795, para 31; Case C-360/09 Pfleiderer, EU:C:2011:389 para 21. See also above n. 17. Hence, soft law may be deemed not decisive for national courts´ application of EU rules so that there is no perceived need to refer questions about interpretation or validity of EU soft law to the CJEU. A clear statement in the general framework on EU soft law regarding the normal legal effect of EU soft law for domestic institutions might contribute to a reconsideration of this issue and could affect the CJEU´s approach with regard to actions for annulment as well.A readjustment of the CJEU´s approach is demanded by Advocate General Bobek in his opinion in Case C-16/16 P Belgium v Commission [2017] EU:C:2017:959, para 4. Admittedly, however, the problem of lack of standing of individuals in actions for annulment against EU law is not solved therewith.

f.Further Course of Action

In 2016, the EP intensified its efforts to legislate an EU regulation on EU administrative procedures based on Article 298 TFEU, which unfortunately appears to have come to a halt with the meeting of the newly elected EP in 2019.For a brief report of the state of affairs in this regard, see Parliament, ‘Legislative train schedule’ <https://www.europarl.europa.eu/legislative-train/theme-union-of-democratic-change/file-eu-administrative-procedure> accessed 20 December 2021. The proposed rules have not yet addressed the issues set out here as the enactment of soft law appears not to be included in the ambit of the proposal, but a resumption of the legislative process could provide an opportunity for change in order to add the provisions proposed above to a general EU administrative law rulebook.

6.Conclusion

The proliferation of soft law instruments in the management of the COVID-19 pandemic and its consequences for the European societies and economies has once again illustrated the high salience of soft modes of EU governance in particular with a view to domestic implementation of EU law. While one could observe the benefits and effects of EU soft law for domestic implementation also during the COVID-19 pandemic, their constitutional challenges for democratic legitimacy and rule of law have become manifest as well. The challenges of a proliferate usage of soft law for the legitimacy of EU governance and for the rule of law in the EU should best be addressed by a general legal framework for the adoption of EU soft law. Core elements of such a general legal framework should introduce stipulations of subsidiarity vis-a-vis executive rulemaking, minimum procedural (control, consultation), transparency and justification requirements for the adoption of Commission soft law instruments, together with clarifications as to their domestic effects. For urgent measures, less demanding requirements are to be provided. The pending project of adopting a general EU regulation on administrative procedures would be a suitable opportunity to incorporate the proposals formulated in this article.