'Verba Volant, Quoque (Soft Law) Scripta?' An analysis of the legal effects of national soft law implementing EU soft law in France and the UK

EU soft law is not subject to transposition duties by the Member States. Yet national authorities have increasingly adopted soft law acts to implement EU soft law in a variety of policy areas, such as competition and environment. As argued by Hartlapp, national implementation practices result in efficiency gains, while the implementation of EU soft law by the Member issued by the French and UK authorities to implement EU Commission soft law in competition and environmental policies. The contribution of this chapter to the existing literature and the European Network of Soft Law Research (SoLaR) project is twofold. First, the chapter conducts a textual analysis of the chosen national implementing measures and closely assesses their wording. Second, it discusses the legal effects of national implementing soft law with regard to (a) the potential effect on third parties, (b) the influence on the discretion of the issuing authority and (c) the use made by national courts. This analysis reaches two main findings. First, the legal effects of national implementing soft law are unsettled and thus increase unpredictability and uncertainty associated with EU soft law. Second, there is a risk of fragmentation of legal effects between EU soft law and national implementing soft law, decreasing legal certainty and hinder- ing good governance.
Ancient wisdom offers guidance to rationalise the role and effects of EU and national soft law and suggests a way forward. According to the Latin proverb,3 spoken words (verba) ‘fly away’ (volant) and thus have no influence on individuals’ behaviour, while written words (scripta) will ‘remain’ (manent) and influence legal conduct. How can we then ensure that the wording of EU soft law measures ‘stays’ and does not ‘fly away’? This chapter argues that EU institutions, jointly with national authorities and courts, should strive to enhance the uniformity of the effects of soft law measures at the EU level and in Member States. In particular, EU and national authorities ought to ensure that soft law is treated as ‘written words’ (scripta), the meaning and effects of which ‘remain’ (manent) in the legal orders of the EU and its Member States.
The rest of the chapter proceeds as follows. First, an overview is given of the selected EU policy areas and the legal effects of EU soft law measures issued in these fields are described. Second, the national implementation of specific EU soft law measures in the areas of competition and environment law in France and the UK are discussed, along with the legal consequences of national implementing soft law. Some final remarks and suggestions on how to address the fragmentation of the legal effects of EU and national soft law are provided in the conclusion.