Judicial Review of EU Soft Law Acts as a Matter of the Rule of Law

As constantly repeated by the Court of Justice, the European Union is a union based on the rule of law, which means, among others, that all acts of its institutions are subject to review of their compatibility with the ‘higher law’, in particular the Treaties, general principles of law and fundamental rights. In other words, no act of an EU institution can escape the judicial review performed by the Court of Justice. However, a question arises whether this rule applies or should apply even to EU acts having a character of soft law. Although they do not have binding legal force or do not induce binding legal effects, they are still results of the exercise of public powers, and hence they should be under the judicial control as well. Nonetheless, the current system of judicial review seems insufficient to provide such a control. The action for annulment is not available, and the preliminary reference on validity, which allows for the judicial review of soft law, presents an imperfect alternative because of various obstacles. This article argues that, in the name of the rule of law, it is desirable to change the current settings and to allow for judicial review of soft law in all possible procedural channels.