the rights and obligations of individuals. This approach can have an important impact on the functions that some soft law instruments play at a regulatory level. Thus, even if certain soft law is issued by the European Commission in order to enhance the protection of several principles of law at the same time, only some of those values can be accommodated. Judicial control of soft law Courts have admitted that sometimes soft law interpreting hard law provisions creates new obligations and has a binding legal effect. In such situations, soft law is considered ultra vires and is annulled by the Courts, as only instruments having a legally binding force can lawfully create new obligations for individuals or MS. A classical example is the annulment of the communication on the application of the financial transparency directive to public undertakings in the manufacturing sector. While a general obligation to supply information on financial relations between the State and public undertakings was provided for in the directive, the implementing communication created a supplementary obligation, by requiring specific data to be sent annually. The Court considered that the communication added to the obligations laid out by the directive, and annulled it for failure to provide the legal basis from which it derived its binding force, in accordance to the principle of legal certainty. Thus, the does not judge admissibility of an action only by the form of the act, but analyses its substance in order to determine whether it produces legal effects or not, and whether it can be judicially controlled or not. This should be putting minds at ease, as the Court appears to remain the watchdog of EU legislation, be it soft or hard. Furthermore, the Court employs a refined analysis and distinguishes between instruments deprived of legally binding force and hard law, while not attempting to turn one into the other as critics of soft law might argue. There is thus a limit to the obligations that can be lawfully imposed by
the rights and obligations of individuals. This approach can have an important impact on the functions that some soft law instruments play at a regulatory level. Thus, even if certain soft law is issued by the European Commission in order to enhance the protection of several principles of law at the same time, only some of those values can be accommodated. Judicial control of soft law Courts have admitted that sometimes soft law interpreting hard law provisions creates new obligations and has a binding legal effect. In such situations, soft law is considered ultra vires and is annulled by the Courts, as only instruments having a legally binding force can lawfully create new obligations for individuals or MS. A classical example is the annulment of the communication on the application of the financial transparency directive to public undertakings in the manufacturing sector. While a general obligation to supply information on financial relations between the State and public undertakings was provided for in the directive, the implementing communication created a supplementary obligation, by requiring specific data to be sent annually. The Court considered that the communication added to the obligations laid out by the directive, and annulled it for failure to provide the legal basis from which it derived its binding force, in accordance to the principle of legal certainty. Thus, the does not judge admissibility of an action only by the form of the act, but analyses its substance in order to determine whether it produces legal effects or not, and whether it can be judicially controlled or not. This should be putting minds at ease, as the Court appears to remain the watchdog of EU legislation, be it soft or hard. Furthermore, the Court employs a refined analysis and distinguishes between instruments deprived of legally binding force and hard law, while not attempting to turn one into the other as critics of soft law might argue. There is thus a limit to the obligations that can be lawfully imposed by
Oana_Stefan_Courts_soft_law_Maastricht_FINAL.docx