Words Are Stones: Constructing Bindingness Through Language in EU Environmental Soft Law

All Commission Guidance Documents adopted under the Habitats Directive make explicit mention of their legally non-binding nature. Yet, all documents contain detailed plans of action to aid with the application, transposition, and interpretation of the Directive at the Member State level. In lack of obligation, how do these instruments convince actors to comply? In this paper, we explore how EU soft law instruments convey authority and influence the behaviour of their addressees by inquiring on the concept of bindingness beyond legal obligation. We argue that the use of language in soft law measures plays a crucial role in conveying authority and driving compliance by blurring the lines between obligations, recommendations, and information. Thus, in this paper we examine how soft law measures make use of language to communicate meaning to the addressees. This is done within the particular context of EU environmental regulation. To gain insight into the use of language in EU soft law instruments, this research employs a mixed methods approach and has analysed all Guidance Documents (=total 30) issued by the European Commission under four Directives: the EIA and SEA Directives, and the Birds and Habitats Directives, thereby covering the majority of EU Environmental Assessment and Biodiversity policies. The analysis reveals that, overwhelmingly, Guidance Documents make use of strict prescriptive language that leaves little margin of choice for the addressees, thus compromising the formally voluntary character of the instruments and blurring the lines between legally binding and non-binding norms.