¹ Saurugger, Sabine & Terpan, Fabien, Resistance to EU Soft Law: A Typology of Instruments 24–25 (May 9, 2013) (unpublished manuscript) (on file with the author) (developing a similar typology to account for resistance to, and not recognition of, soft law).Google Scholar

² See infra Section B.II (elaborating on this view proposed by Oana Stefan); Stefan, Oana, Soft Law in Court: Competition Law, State AidandtheCourt of Justice of the European Union 142 (2012).Google Scholar

³ The only institution that is bound by competition soft law is the European Commission. See Dansk Rorindustri v. Comm'n, CJEU Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P, 2005 E.C.R. I-05425, paras. 209-11 (holding that the European Commission binds its own discretion when issuing latter instruments). Thus, in accordance with formal legal doctrine, unless the Commission is party to a dispute involving soft law, soft instruments cannot be deemed to produce binding effects.Google Scholar

⁴ Borchardt, G.M. & Wellens, K.C., Soft Law in European Community Law, 14 Eur. L. Rev. 267, 270 (1989).Google Scholar

⁵ Id. at 313.Google Scholar

⁶ See id. at 321 (“In so far as Community soft law intends to cause legal consequences with regard to the individual these rules of conduct are particularly eligible for an appeal for annulment or a preliminary ruling.”).Google Scholar

⁷ See infra Section C (discussing this point in greater detail); id. at 312 (“Soft law does create an expectation that conduct of states, international organizations and the individual will be in conformity with the non-binding rules of conduct. In this regard it is correct to speak of ‘commitments’ (legal) and ‘expectations’ (legal).”).Google Scholar

⁸ See Tridimas, Takis, The General Principles of EC Law 163 (1999); Schauer, Frederick, Thinking Like a lawyer 43 (2009) (“From the perspective of those who are subject to law's constraints, the gains from marginal improvements in the law are rarely sufficient to outweigh the losses that would come from being unable to rely even on imperfect legal rules and imperfect precedents.”).Google Scholar

⁹ Senden, Linda, Soft Law in European Community Law (Its Relationship to Legislation) 265 (2004).Google Scholar

¹⁰ See id. (noting that those two terms are, in turn, opposed to inherent binding force—the classical stipulation that a hard law act is binding by virtue of the intent of the legislator).Google Scholar

¹¹ Here, “merits” should be understood as: Drafter's intention (wording, context, and history), possibility of the act to produce novel legal effects not contained in underlying primary or secondary law, legal basis of the act, institutional competence to adopt in conformity with legal basis, and lack or presence of agreement between parties to the act. See Senden, supra note 9, at 292–305.Google Scholar

¹² Id. at 267.Google Scholar

¹³ Soft law is also used at member state level in the form of, among others, clarifying circulars issued to administrative authorities by the government. The national setting, however, is not considered in this paper because soft law operates differently in the supra-, national, and international contexts. See Trubek, David, Patrick Cottrell & Mark Nance, Soft Law, Hard Law, and European integration: Toward a Theory of Hybridity 1, 3 (Univ. of Wis. Legal Studies, Working Paper No. 1002, 2005) (presenting a similar compartmentalization approach).Google Scholar

¹⁴ See Cosma, Hakon & Whish, Richard, Soft Law in the Field of EU Competition Policy, 14 Eur. Bus. L. Rev. 25, 50 (2003) (contending that Art. 17.1 TEU is the legal basis for adoption of competition soft law); Lehmkuhl, Dirk, On Government, Governance and Judicial Review: The Case of European Competition Policy, 28 Int'l Pub. Pol'y 139, 150 (2008). Note that Art. 17.1 TEU (ex. Art. 211 EC) has become even vaguer as to the powers of the Commission after the revision it underwent with the Lisbon Treaty.Google Scholar

¹⁵ See Senden, supra note 9, at 160.Google Scholar

¹⁶ See, e.g., Communication from the Commission — Notice — Guidelines on the Application of Article 81(3) of the Treaty, 2004 O.J. (C 101) 8 (“[T]he Commission also intends to explain its policy with regard to issues that have not been dealt with in the case law, or that are subject to interpretation.”).Google Scholar

¹⁷ See Senden, supra note 9, at 21 (acknowledging that although soft law is not a new phenomenon, its “proposed use as an alternative to legislation is new”).Google Scholar

¹⁸ Senden, Linda, Soft Law and its Implications for Institutional Balance in the EC, 1 Utrecht L. Rev. 79, 93 (2005).Google Scholar

¹⁹ See Council Regulation 1/2003, 2002 O.J. (L 4) 1 (changing the EU Competition Law regime both substantively and procedurally on 1 May 2004).Google Scholar

²⁰ See Sharpston, Eleanor, Legitimate Expectations and Economic Reality, 15 Eur. L. Rev. 103, 104 (1990) (expressing this same view).Google Scholar

²¹ The term “participation” here refers to the public consultations that the Commission holds before issuing competition soft instruments.Google Scholar

²² Clarity and certainty here should only be understood as practical clarity and certainty. When it comes to legal certainty, contrary to Commission claims that it is enhanced by soft law, soft law creates greater uncertainty for the subjects of the law whose expectations might be induced by soft law, but are subsequently non-defensible in court since soft law lacks legal status.Google Scholar

²³ See, e.g., Borchardt & Wellens, supra note 4 (analyzing from a quite formalist viewpoint); Senden, supra note 9 (presenting a doctrinal thesis from a similarly formalistic perspective). But see Stefan, supra note 2 (adapting a more flexible approach to law).Google Scholar

²⁴ See Finnemore, Martha & Toope, Stephen, Alternatives to Legalization: Richer Views of Law and Politics, 55 Int'l Org. 743, 749 (2001)Google Scholar

** Under a broader view of law, the legalization of politics encompasses more than just the largely technical and formal criteria of obligation, precision, and delegation. It encompasses features and effects of legitimacy, including the need for congruence between law and underlying social practice. It attends to the purposive construction of law within inherited traditions, the way participating in law's construction contributes to legitimacy and obligation, and to the continuum of legality from informal to more formal norms.Google Scholar

²⁵ See Borchardt & Wellens, supra note 4, at 293.Google Scholar

²⁶ See Finnemore & Toope, supra note 24, at 749.Google Scholar

²⁷ Id. Google Scholar

²⁸ See infra Sections C & D (delineating the concept of “flexible norms” further).Google Scholar

²⁹ See Schauer, Frederick, Playing by the Rules 121 (1991) (“[A]n agent has an internal point of view with respect to a rule when that agent treats a rule's existence as relevant to the question of what to do.”).Google Scholar

³⁰ See Notice on Agreements of Minor Importance Which do not Appreciably Restrict Competition Under Article 101(1) of the Treaty on the Functioning of the European Union, COM (2014) 4136 final [hereinafter De Minimis Notice] (providing a recent example of the administration (the European Commission) engaging the judiciary in a dialogue on the substance of soft law). The question now is whether the CJEU could explicitly engage with a Commission soft law instrument in its discourse.Google Scholar

³¹ Gerstenberg, Oliver & Sabel, Charles, Directly-Deliberative Polyarchy: An Institutional Ideal for Europe?, in Good Governance in Europe's Integrated Market 289 (Christian Joerges & Renaud Dehousse eds., 2002).Google Scholar

³² See Sabel, Charles & Simon, William, Epilogue: Accountability Without Sovereignty, in Law and New Governance in the EU and US 395 (Grainne de Burca & Joanne Scott eds., 2006); see also Walker, Neil, EU Constitutionalism and New Governance, in Law and New Governance in the EU and US 15 (Grainne de Burca & Joanne Scott eds., 2006); Burca, Grainne De & Scott, Joanne, Introduction: New Governance, Law and Constitutionalism, in Law and New Governance in the EU and US 1 (Grainne de Burca & Joanne Scott eds., 2006); Dawson, Mark, Soft Law and the Rule of Law in the European Union: Revision or Redundancy?, in Lawyering Europe: European Law as a Transnational Social Field 221 (Bruno de Witte & Antoine Vauchez eds., 2013).Google Scholar

³³ See infra Section B.II.Google Scholar

³⁴ See Trubek, Cottrell & Nance, supra note 13, at 3.Google Scholar

³⁵ Everson, Michelle, The Crisis of Indeterminacy: An Equitable Law of Deliberative European Market Administration?, in Good Governance in Europe's Integrated Market, supra note 31, at 231, 234.Google Scholar

³⁶ See Scott, Joanne & Sturm, Susan, Courts as Catalysts: Re-Thinking the Judicial Role in New Governance, 13 Colum. J. Eur. L. 565, 566-67 (2006) (emphasizing the importance of courts in MLG settings); see also Dawson, Mark, Transforming into What? New Governance in the EU and the Managerial Sensibility in Modern Law, 2 Wis. L. Rev. 389, 411 (2010) (stressing the weight of courts in MLG settings as well).Google Scholar

³⁷ See Borchardt & Wellens, supra note 4, at 267.Google Scholar

³⁸ Id. at 270. The importance of intended agreement between parties as a determinant of legal obligation of an instrument materializes in the EU Competition Law domain too as will be argued below. See infra Section B.III.Google Scholar

³⁹ See Borchardt & Wellens, supra note 4, at 271 (discussing soft law as signifying the “inadequate maturity of a particular rule of law” or as a phenomenon with pre-legal or para-legal character, which can thus reach the level of a hard obligation if re-negotiated); id, (acknowledging that in a court of law, a soft rule can be transformed into hard law if it forms the ratio decidendi of the judges’ reasoning).Google Scholar

⁴⁰ Klabbers, Jan, The Undesirability of Soft Law, 67 Nordic J. Int'l L. 381, 391 (1998).Google Scholar

⁴¹ Klabbers, Jan, The Redundancy of Soft Law, 65 Nordic J. Int'l L. 167, 177 (1996). But see Jan Klabbers, institutional Ambivalence by Design: Soft Organizations in International Law, 70 Nordic J. Int'l L. 403, 412 (2001) (“A strong argument can be made that to speak of ‘political bindlngness’ versus ‘legal bindingness’ is not all that meaningful, as there might not exist such a neat separation between law and politics.”).Google Scholar

⁴² Abbott, Kenneth & Snidal, Duncan, Hard and Soft Law in International Governance, 54 Int'l Org. 421, 447 (2000).Google Scholar

⁴³ Chinkin, Cristine, The Challenge of Soft Law: Development and Change in International Law, 38 Int'l & Comp. L. Q. 850, 856 (1989).Google Scholar

⁴⁴ Id. at 859.Google Scholar

⁴⁵ Id. at 858.Google Scholar

⁴⁶ See Snyder, Francis, The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques, 56 Mod. L. Rev. 19, 33 (1993) (providing supporting views of the transformation thesis); Graells, Albert, Soft Law and the Private Enforcement of the EU Competition Rules, in International Conference on the Private Enforcement of Competition Law 1 (2010) (supplying additional support for this thesis). But see Oana Stefan, Soft Law in Court: Competition Law, State Aid and the Court of Justice of the European Union 142 (2012) (stating opposition to the transformation thesis).Google Scholar

⁴⁷ See Stefan, supra note 2, at 142–54.Google Scholar

⁴⁸ See Trubek, David & Trubek, Louise, The Coexistence of New Governance and Legal Regulation: Complementarity or Rivalry?, in Annual Meeting of the Research Committee on the Sociology of Law 1 (2005); Trubek, Cottrell & Nance, supra note 13, at 4; Trubek, David & Trubek, Louise, New Governance & Legal Regulation: Complementarity, Rivalry, and Transformation (Univ. of Wis. Legal Studies, Working Paper No. 1047, 2007).Google Scholar

⁴⁹ See Stefan, supra note 2, at 142–54.Google Scholar

⁵⁰ See Senden, supra note 9, at 352-71 (making the same contention).Google Scholar

⁵¹ But see Finnemore & Toope, supra note 24, at 748 (“Increased precision could lead to less obligation, when prospective members of legal regimes are driven away by fears of detailed rules that are Inflexible.”).Google Scholar

⁵² See Chinkin, supra note 43, at 864.Google Scholar

⁵³ Id. at 865.Google Scholar

⁵⁴ See Crane, Daniel, Rules Versus Standards in Antitrust Adjudication 1 (Jacob Burns Inst. for Advanced Legal Studies, Working Paper No. 162, 2006) (discussing the cyclical ebbs and flows of certainty and fluidity); Vanderbilt, Arthur, The Modernization of the Law, 36 Cornell L. Q. 433, 433 (1951) (providing a more philosophical account).Google Scholar

⁵⁵ This rationale holds explanatory value for the reforms that the EU Competition Policy regime underwent with the introduction of Regulation 1/2003. It also explains the increased importance that the system has attributed to competition guidelines, notices, and the like ever since.Google Scholar

⁵⁶ See Borchardt & Wellens, supra note 4, at 267; Abbott & Snidal, supra note 42, at 421; Finnemore & Toope, supra note 24, at 743.Google Scholar

⁵⁷ See Borchardt & Wellens, supra note 4, at 280.Google Scholar

⁵⁸ Polska Telefonia Cyfrowa v. Prezes Urzędu Komunikacji Elektronicznej, CJEU Case C-410/09, 2011 E.C.R. I-03853 (providing a recent example of the CJEU confirming this view).Google Scholar

⁵⁹ See Borchardt & Wellens, supra note 4, at 301.Google Scholar

⁶⁰ Id. at 301.Google Scholar

⁶¹ Id. at 290.Google Scholar

⁶² See Senden, supra note 9, at 282-83Google Scholar

** [R]ecommendations are generally adopted by the Community institutions when the Treaty does not confer the power upon them to adopt binding measures. Where the power is actually provided for, the ‘danger’ lurks that an institution may in fact want to impose (new) legal rights and obligations by way of soft law acts.Google Scholar

⁶³ Id. at 290.Google Scholar

⁶⁴ See, e.g., Klabbers, Jan, Informal Instruments Before the European Court of Justice, 31 Common Mkt. L. Rev. 997, 1016 (1994) (acknowledging that form is not definitive as to the legal nature of an instrument); Senden, supra note 9, at 276; Usines à Tubes de la Sarre v. High Authority, CJEU Joined Cases C-1/57 & C-14/57, 1957 E.C.R. I-105 (serving as the original CJEU decision on the matter).Google Scholar

⁶⁵ See Terpan, Fabien, Soft Law in the European Union: The Changing Nature of EU Law 1 (Sci. Po Grenoble, Working Paper No. 7, 2013) (asserting that a transition to hard law by virtue of internal setup/validation/status is underway in this case).Google Scholar

⁶⁶ See Senden, supra note 9, at 76; Borchardt & Wellens, supra note 4, at 280.Google Scholar

⁶⁷ See Senden, supra note 9, at 306.Google Scholar

⁶⁸ Stefan, Oana, European Union Soft Law: New Developments Concerning the Divide Between Legally Binding Force and Legal Effects, 75 Mod. L. Rev. 879, 886.Google Scholar

⁶⁹ See Borchardt & Wellens, supra note 4, at 305 (noting that the statement should be read with the caveat that if firms voluntarily choose to comply with soft instruments, this fact need not entitle them to a legal remedy).Google Scholar

⁷⁰ Community Framework on State Aid to the Motor Vehicle Industry, 1997 O.J. (C 279) 97.Google Scholar

⁷¹ Commission Decision 90/381, 1990 O.J. (L 188) 55.Google Scholar

⁷² Cini, Michelle, The Soft Law Approach: Commission Rule-Making in the EU's State Aid Regime, 8 J. Eur. Pub. Pol'y 192, 202 (2001).Google Scholar

⁷³ Senden, supra note 9, at 298.Google Scholar

⁷⁴ CIRFS v. Comm'n, CJEU Case C-313/90, 1993 E.C.R. I-1125; Spain v. Comm'n, CJEU Case C-135/93, 1995 E.C.R. I-1651; Ijsel Vliet Combinatie v. Minister van Economische Zaken, CJEU Case C-311/94, 1996 E.C.R. I-05023; Ger. v. Comm'n, CJEU Case C-288/96, 2000 E.C.R. 1-8237; Comm'n v. Luxembourg, CJEU Case C-69/05, 2006 E.C.R. I–00007; Stefan, supra note 2, at 176, 177; Senden, supra note 9, at 271, 304, 305.Google Scholar

⁷⁵ See Senden, supra note 9, at 295 (coining this term).Google Scholar

⁷⁶ If we run competition soft law through the insights of Schauer, it also becomes clear that its compelling and quite detailed content might not be suitable for the context in which it operates. In policy domains that are subject to constant change in circumstances (i.e. electronic communications), it is better to create vaguer rules which are by default more adaptive to change and, in this sense, lend themselves to flexible, prospective decisionmaking. Insofar as competition regulation is a field experiencing constant change, it needs to be governed by less heavy-weight rules in terms of content (and not only in terms of ‘soft’ law with hard content). See Schauer, supra note 8, at 195.Google Scholar

⁷⁷ See Stefan, supra note 2, at 142-54; Senden, supra note 9, at 267; Borchard & Wellens, supra note 4, at 288–89.Google Scholar

⁷⁸ See Stefan, supra note 2, at 22.Google Scholar

⁷⁹ See Tridimas, supra note 8, at 3 (specifying that general principles of law, because of their diverse application, can also be relied on by Member States and Community institutions).Google Scholar

⁸⁰ Tridimas, supra note 8, at 3.Google Scholar

⁸¹ Groussot, Xavier & Lidgard, Hans, Are There General Principles of Community Law Affecting Private Law?, in General Principles Of EC Law In A Process Of Development 155, 163 (Ulf Bernitz et al. eds., 2008).Google Scholar

⁸² Everson, Michelle, The Crisis of Indeterminacy: An Equitable Law of Deliberative European Market Administration?, in Goon Governance in Europe's Integrated Market, supra note 31, at 231, 252.Google Scholar

⁸³ Roermund, Bert van, Legal Thought And Philosophy: What Legal Scholarship is All About 273 (2013).Google Scholar

⁸⁴ See Tridimas, supra note 8, at 2.Google Scholar

⁸⁵ See Senden, supra note 9, at 451.Google Scholar

⁸⁶ Rorindustri v. Comm'n, CJEU Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P, 2005 E.C.R. I-05425.Google Scholar

⁸⁷ Council Regulation 1/2003, art. 3, 2002 O.J. (L 4) 1 (creating this obligation).Google Scholar

⁸⁸ This is how general principles of law that stem from the legal systems of Member States are referred to.Google Scholar

⁸⁹ See Senden, supra note 9, at 309.Google Scholar

⁹⁰ See Stefan, supra note 68, at 892 (basing her conclusion on Polska Telefonia Cyfrowa v. Prezes Urzędu Komunikacji Elektronicinej, CJEU Case C-410/09, 2011 E.C.R. I-03853.Google Scholar

⁹¹ See Setfan, supra note 2, at 209; Hofmann, Herwig, Negotiated and Non-Negotiated Administrative Rulemaking: The Example of EC Competition Policy, 43 Common Mkt. L. Rev. 153, 165 (2006) (providing another discussion on the principle of equality as a general principle of law that can endow competition administrative guidelines with legal effects).Google Scholar

⁹² See, e.g., Commercial Solvents v. Comm'n, CJEU Case C-7/73, 1973 E.C.R. I-00223; Europemballage Corp. & Continental Can Co. v. Commission, CJEU Case C-6/72, 1973 E.C.R. I-00215 (asserting that competition in the internal market should not be eliminated).Google Scholar

⁹³ Usher, John, General Principles of EC Law 8 (1998).Google Scholar

⁹⁴ Charter of Fundamental Rights of the European Union, Oct. 26, 2012, art. 16, 2012 O.J. (C 326) 1.Google Scholar

⁹⁵ See infra Section D.Google Scholar

⁹⁶ Case 19/77, Miller Int'l Schallplatten GmbH v. Comm'n, 2 C.M.L.R. 334 (1978); Hercules Chemicals v. Comm'n, CJEU Case T-7/89, 1991 E.C.R. II-1711, paras. 53–54; Rorindustri v. Comm'n, CJEU Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P, 2005 E.C.R. I-05425, paras. 209–11.Google Scholar

⁹⁷ Rorindustri, CJEU Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P at para. 211.Google Scholar

⁹⁸ Unie v. Comm'n, CJEU Case C-40/73, 1975 E.C.R. I-01663.Google Scholar

⁹⁹ Rorindustri, CJEU Joined Cases C-189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P, at para. 211.Google Scholar

¹⁰⁰ Delimitis v. Henninger Bräu AG, CJEU Case C-234/89, 1991 E.C.R. I-00935, para. 22.Google Scholar

¹⁰¹ See supra Section B.III.Google Scholar

¹⁰² See Stefan, supra note 2, at 173–74.Google Scholar

¹⁰³ Senden, supra note 9, at 379–412.Google Scholar

¹⁰⁴ Similarly, in the international law context, Hillgenberg submits that non-treaty agreements, although technically non-enforceable, could produce legal consequences when taken into account for the purposes of interpreting a Treaty. See Hillgenberg, Hartmut, A Fresh Look at Soft Law, 10 (3) Eur. J. Int'l L. 499, 513-14 (1999). The same is submitted by Klabbers, supra note 64, at 1012.Google Scholar

¹⁰⁵ Howells, Geraint, Soft Law in EC Consumer Law, in Lawmaking In The EU, 329 (Craig and Harlow eds., 1998).Google Scholar

¹⁰⁶ Senden, supra note 9, at 390. The same idea is present in Liza Gormsen, Why the European Commission's Enforcement Priorities an Art. 82 EC Should Be Withdrawn, 31 (2) Eur. Competition L. Rev. 45, 49 (2010). Stefan also believes that, “In order to justify their position, courts ground soft law in judicial precedent.” Stefan, supra note 2, at 181–98.Google Scholar

¹⁰⁷ Senden, supra note 9, at 402–07. Senden explains that, while earlier case law of the CJEU painted towards the conclusion that soft law could be considered as nothing more than a voluntary interpretation aid for national courts, after Grimaldi and the subsequent Deutsche Shell (C–188/91 Deutsche Shell [1993] ECR I–5357) case, soft law should be used as a mandatory interpretation aid the national judiciary.Google Scholar

¹⁰⁸ Salvatore Grimaldi v. Fonds Des Maladies Professionnelles, CJEU Case C-322/88, 1989 E.C.R. 04407.Google Scholar

¹⁰⁹ Id. at para. 18.Google Scholar

¹¹⁰ Lodato Gennaro & C. SpA v. Istituto Nazionale Della Previdenza Sociale (INPS) and SCCI, CJEU Case C-415/07, 2009 E.C.R. I-02599.Google Scholar

¹¹¹ Id. In paragraph 28, the CJEU states completely out of context that a certain comparison term — the subject of the proceedings—that was originally contained in a guideline, is the same as the one adopted in a subsequent Regulation. The statement is out of context because earlier in the judgment in paragraph 22 the CJEU explicitly stated that there was no need for it to further discuss said Regulation because it was not adopted at the time of the dispute and was therefore immaterial to it. An explanation for the otherwise redundant paragraph 28, thus, would be the need of the court to somehow ground its soft-law-based arguments in hard law.Google Scholar

¹¹² For instance, see Senden, supra note 9, at 412; Klabbers, supra note 64, at 1014; Grainne de Burca and Paul Craig, EU Law: Texts, Cases and Materials 190 (2011).Google Scholar

¹¹³ Grainne de Burca and Paul Craig, EU Law: Texts, Cases and Materials 190 (2011).Google Scholar

¹¹⁴ Marleasing SA v. La Comercial Internacional de Alimentacion SA, CJEU Case C-106/89, 1990 ECR I-04135.Google Scholar

¹¹⁵ Senden, supra note 9, at 412.Google Scholar

¹¹⁶ Klabbers, supra note 64, at 1014.Google Scholar

¹¹⁷ Senden, supra note 9, at 412.Google Scholar

¹¹⁸ Austria v. Cammission, CJEU Case C-99/98, 2001 E.C.R. I-01101.Google Scholar

¹¹⁹ Stefan, supra note 2, at 181–98.Google Scholar

¹²⁰ Polska Telefonia Cyfrowa sp. z o.o. v. Prezes Urzędu Komunikacji Elektronicznej, CJEU Case C-410/09, 2011 E.C.R. I-03853.Google Scholar

¹²¹ Stefan, supra note 2, at 885.Google Scholar

¹²² Stefan, supra note 2, at 189. See also, Emilia Korkea-Aho, What Is New About New Governance?, 32 Retaerd Argang 3 (2009).Google Scholar

¹²³ Stefan, supra note 2, at 190. See also, Laurence Gormley, Some Further Reflections on the Development of General Principles of Law within Art. 10 EC, in General Principles Or EC Law In The Process Of Development, 303 (Ulf Bernitz et al. eds., 2008).Google Scholar

¹²⁴ Hillgenberg, supra note 104, at 506.Google Scholar

¹²⁵ For an illustration, see, infra Section D.I.1.b, the section on community loyalty.Google Scholar

¹²⁶ Raitio testifies that, “In EU law literature, the principle legal certainty has been linked with other general principles.” See Raitio, Juha, The Principle of Legal Certainty as a General Principle of EU Law, in General Principles Of EC Law In A Process Of Development, 47 (Ulf Bernitz et al. eds., 2008). For the concrete conditions under which the proposed combination could work, see, infra Section D.Google Scholar

¹²⁷ The possibility of pairing legitimate expectations and community loyalty to induce indirect legal effects of competition soft law will be explored in Section D, infra. Google Scholar

¹²⁸ Pfleiderer AG v. Bundeskartellamt, CJEU Case C-360/09, 2011 E.C.R. I-05161, paras. 21–24.Google Scholar

¹²⁹ Id. at paras. 21, 23.Google Scholar

¹³⁰ Expedia Inc. v. Autorité De La Concurrence and Others, CJEU Case C-226/11, para. 27 (Dec. 13, 2012), https://curia.europa.eu.Google Scholar

¹³¹ Id. at para. 24.Google Scholar

¹³² Id. at para. 30.Google Scholar

¹³³ Id. at para. 26.Google Scholar

¹³⁴ In order to take account of this substantive judicial disagreement, the Commission issued a new version of the de minimis notice in 2014 (O.J. 2014 C 4136) where paragraph 2 of the old de minimis notice (O.J. 2001 C 368) was replaced by the holding of the CJEU in para. 37 of its Expedia judgment.Google Scholar

¹³⁵ Id. Google Scholar

¹³⁶ Expedia Inc., CJEU Case C-226/11 at para. 37.Google Scholar

¹³⁷ Commission Staff Working Document SWD (2014) 198, Notice on Agreements of Minor Importance Which Do Not Appreciably Restrict Competition Under Article 101(1) of the Treaty on the Functioning of the European Union (De Minimis Notice), 2014 O.J. (C(2014) 4136 final).Google Scholar

¹³⁸ Expedia Inc., CJEU Case C-226/11 at para. 5.Google Scholar

¹³⁹ Senden, supra note 9, at 406–7.Google Scholar

¹⁴⁰ Expedia Inc., CJEU Case C-226/11 at para. 38.Google Scholar

¹⁴¹ Id. at para. 37.Google Scholar

¹⁴² With regard to state aid soft law, the previous section, see, infra Section C.II, showed that incidental binding force has also been accepted by the courts.Google Scholar

¹⁴³ This is why in the introductory definition of “judicial recognition,” the formalist possibility for the courts to “refuse to interpret soft law,” is not foreseen.Google Scholar

¹⁴⁴ See, infra Section D.I.Google Scholar

¹⁴⁵ See, infra Section D.II.Google Scholar

¹⁴⁶ See generally, Stone-Sweet, Alec, The European Court of Justice and the Judicialization of EU Governance, 5 (2) Living Revs. in Eur. Governance 5 (2010). See also, Scott & Sturm, supra note 36, at 566–67.Google Scholar

¹⁴⁷ Scott & Sturm, supra note 36, at 566.Google Scholar

¹⁴⁸ Id. at 567.Google Scholar

¹⁴⁹ Id. at 570. The same observation is also made by Stone-Sweet, supra note 132, at 117.Google Scholar

¹⁵⁰ Stone-Sweet, Alec, Constitutional Politics: The Reciprocal Impact of Lawmaking and Constitutional Adjudication, in Lawmaking In The European Union, 111 (Paul Craig & Carol Harlow eds., 1998).Google Scholar

¹⁵¹ Joanne Scott and David Trubek, Mind the Gap: Law and New Approaches to Governance in the European Union, 8 (1) Eur. L.J. 1, 11 (2002).Google Scholar

¹⁵² Id. Scott and Trubek also detect instances at which governance had been (1) thwarted—in the instances where the CJEU had insisted that Directives creating rights and obligations for individuals be transposed as hard legislation only—(2) distorted—an artificial concept is created in order to enable the output of a new governance process to be interpreted in light of general principles of community law—or (3) taken seriously—when interpreting the concept of representativeness as a democratically legitimating feature of the process of lawmaking. It is passible that national courts also exhibit similar attitudes to competition soft law in their first direct interactions with it.Google Scholar

¹⁵³ Stone-Sweet discusses the high stakes involved in novel lawmaking in the following way: “At this first stage governments and parliaments enjoy wide policy-making discretion, but face high constitutional uncertainty.” This constitutional uncertainty is according to the current author unfortunately not tackled by the CJEU when it comes to the issue of competition soft law. Stone-Sweet, supra note 151, at 114.Google Scholar

¹⁵⁴ The large discretion of the Commission to develop competition policy is based on the “exclusive EU competence” status of the policy domain and is further confirmed by the supranational courts in their judgments in the field. The rule by which both the CJEU and General Court abide in the domain of competition law is “judicial deference” to the decisions of the European Commission, because those largely involve matters of complex economic assessment. See Forwood, Nicholas, The Commission's More Economic Approach: Implications for the Role of the EU Courts, the Treatment of Economic Evidence and the Scope of Judicial Review, in European Competition Law Annual 2009: Evaluation of Evidence and Its Judicial Review in Competition Cases, 255, 259 (Claus-Dieter Ehlermann & Mel Marquis eds., 2010).Google Scholar

¹⁵⁵ Council Regulation (EC) No. 1/2003 of 16 Dec. 2002 on The Implementation of the Rules on Competition Laid Down in Articles 81 and 82 of the Treaty, 2003 O.J. L 1, 1.Google Scholar

¹⁵⁶ See, supra Section C.Google Scholar

¹⁵⁷ Gormsen in the context of the Art. 102 guidelines (and the methodology for conditional rebates laid down therein), expresses the opinion that the CJEU could have taken the relevant provisions into consideration had it thought of them as enunciating a sensible approach. Gormsen, supra note 106, at 238.Google Scholar

¹⁵⁸ The expression used by Scott & Trubek is “engage seriously with new governance”; we allow ourselves the freedom to supplant the term “new governance” for “soft law” because the latter is an expression or instrument of the former. See Scott & Trubek, supra note 151, at 12.Google Scholar

¹⁵⁹ Tridimas, supra note 8, at 9.Google Scholar

¹⁶⁰ See, supra Section C.II.Google Scholar

¹⁶¹ Miasik contends that, “Another way of applying general principles in judicial practice is to refer to them in order to inspire the judiciary to interpret [national] law in a manner compatible with a particular principle … the more applicants raise issues of general principles of law in their submissions to courts, the more valuable judgments dealing with those principles will be delivered.” See Miasik, Dawid, Application of General Principles of EC Law by Polish Courts—is the European Court of Justice Receiving a Positive Feedback?, in General Principles or EC Law in a Process of Development, 357, 382, 391 (Ulf Bernitz et al. eds., 2008).Google Scholar

¹⁶² See, supra Section C.Google Scholar

¹⁶³ Tridimas, supra note 8, at 163; Usher, supra note 93, at 52–71; Raitio, supra note 127, at 54.Google Scholar

¹⁶⁴ Hofmann, supra note 92, at 162; Usher, supra note 93, at 52. For a more detailed discussion of the difference, see Tridimas, supra note 8, at 170.Google Scholar

¹⁶⁵ Tridimas, supra note 8, at 170.Google Scholar

¹⁶⁶ Usher, John, General Principles and National Law—A Continuing Two-Way Process, in General Principles of EC law In the Process of Development, 393, 402 (Ulf Bernitz et al. eds., 2008).Google Scholar

¹⁶⁷ August Töpfer & Co. GmbH v. Commission of the European Communities, CJEU Case C-112/77, 1978 E.C.R. 01019.Google Scholar

¹⁶⁸ Tridimas, surpa note 8, at 163. For a similar argument, see also Raitio, supra note 126, at 59.Google Scholar

¹⁶⁹ It is submitted by Raitio that, “The principle of legitimate expectations is primarily applicable to individual decisions, but it may in limited cases apply to the exercise of a more general power and thus to the EU legislation as well.” Raitio, supra note 126, at 54.Google Scholar

¹⁷⁰ See, among others, Joined Cases Compagnie Industrielle Et Agricole Du Comté De Loheac and Others v. Council and Commission, CJEU Cases 54–60/76, 1997 E.C.R. I–00645; Mulder v. Minister Van Landbouw En Visserij, CJEU Case C-120/86, 1988 E.C.R. 02321; Von Deetzen v. HZA Hamburg-Jonas, CJEU Case C-170/86, 1988 E.C.R. 02355.Google Scholar

¹⁷¹ This problem is most acute in the abuse of dominance field under Art. 102 as noted by Gormsen, supra note 106, and numerous others.Google Scholar

¹⁷² Council Regulation (EC) No. 1/2003 of 16 Dec. 2002 on The Implementation of the Rules on Competition Laid Down in Articles 81 and 82 of the Treaty, 2003 O.J. L1, 1.Google Scholar

¹⁷³ See Sharpston, supra note 20, at 110–12.Google Scholar

¹⁷⁴ Id. at 142.Google Scholar

¹⁷⁵ Community loyalty cannot create duties on its own but only together with another rule of community law or principle or objective of community policy which is to be promoted; the latter also needs to be sufficiently and precisely defined. See John Temple-Lang, Art. 10 EC—The Most important “General Principle” of Community Law, in General Principles or EC Law In the Process of Development, 75, 79, 86, 88 (Ulf Bernitz et al. eds., 2008). There are, however, signals that this situation might be changing in the future. Id. at 85.Google Scholar

¹⁷⁶ Temple-Lang states that community loyalty is “the most important of the general principles because it is the legal basis of the obligation on all national courts and authorities to comply with all other general principles.” In this regard, it cannot stand on its own and needs to be always used together with another general principle, the latter defining the scope of application of the former. Id. at 77.Google Scholar

¹⁷⁷ Gormley, supra note 123, at 312.Google Scholar

¹⁷⁸ Commission Notice on the Co-Operation between the Commission and the Courts of the EU Member States in the Application of Arts. 81 and 82 EC of 27 Apr. 2004, 2004 O.J. (C 101/04); Commission Notice on the Enforcement of State Aid Law by National Courts of 9 Apr. 2009, 2009 O.J. (C 85/01).Google Scholar

¹⁷⁹ This is in line with Temple-Lang's argument that community loyalty is an underlying consideration of a vast array of Community actions, although the principle is usually not explicitly mentioned. See generally, Temple-Lang, supra note 175.Google Scholar

¹⁸⁰ Temple-Lang, supra note 175, at 90, 97. The author submits that Community law is gradually developing a concept of laws which protect private rights and requiring these rights to be protected, when necessary, under Art. 4.3 TEU; this process, however, when fuelled by judicial output (case law), is slow, incremental and uncoordinated.Google Scholar

¹⁸¹ Id. at 101.Google Scholar

¹⁸² See generally, Gormley, supra note 123; Senden, supra note 9; Stefan, supra note 2. The principle could, however, produce a duty at least to motivate deviation from soft law provisions as advocated by AG Kokkot in her Expedia opinion. Expedia Inc., CJEU Case C-226/11.Google Scholar

¹⁸³ See, supra Section D.l.l.b.Google Scholar

¹⁸⁴ Klabbers, by citing Everling, endorses the view that Art. 10 EC might be just enough to give legal effect to soft law in view of the instruments’ “meaning within the context of the integration process at large and the goals of the Treaty in particular.” Klabbers, supra note 64, at 1016.Google Scholar

¹⁸⁵ See Temple-Lang, supra note 175, at 85.Google Scholar

¹⁸⁶ Id. at 111.Google Scholar

¹⁸⁷ id. at 101.Google Scholar

¹⁸⁸ Usher, supra note 93, at 12.Google Scholar

¹⁸⁹ Tridimas, supra note 8, at 43, 45. In EU competition law, the principle of equality is seen as underlying the very basic premise of undistorted competition.Google Scholar

¹⁹⁰ Id. at 44.Google Scholar

¹⁹¹ Formal equality is what EU economic integration (including the internal market and competition policies) strives to achieve. See De Burca & Craig, supra note 112, at 605.Google Scholar

¹⁹² See, infra Section D.II.Google Scholar

¹⁹³ Raymond Louwage and Marie-Thérèse Louwage, Née Moriame, v. Commission of the European Communities, CJEU Case C-48/73, 1974 E.C.R. 00081.Google Scholar

¹⁹⁴ Stefan (note 2), 220–21.Google Scholar

¹⁹⁵ Id. at 219–25. The case of Expedia may serve as a recent example thereof. See Expedia Inc., CJEU C-226/11.Google Scholar

¹⁹⁶ Stefan, supra note 2, at 201–25.Google Scholar

¹⁹⁷ Werner Mangold v. Rüdiger Helm, CJEU Case C-144/04, 2005 E.C.R. I-09981.Google Scholar

¹⁹⁸ Seda Kücükdeveci v. Swedex GmbH & Co. KG., CJEU Case C-555/07, 2010 E.C.R. I-00365.Google Scholar

¹⁹⁹ Schiek, Dagmar, The ECJ Decision in Mangold: A Further Twist on Effects of Directives and Constitutional Relevance of Community Equality Legislation, 35 (3) Indus. L. J., 329, 333 (2006).Google Scholar

²⁰⁰ As a matter of EU Law (Article 288 TFEU), a Directive needs to be first implemented at the national level in order to produce legal effects and to be a source of rights and obligations for parties. Thus, a non-implemented Directive cannot create rights and obligations until implemented. In the period between adoption and implementation, however, Member States’ bodies are obliged not to take measures which might work counter to the objectives of the Directive. See Inter-Environnement Wallonie ASBL v Région wallonne, CJEU Case C-129/96, 1997 E.C.R. I-7411. For soft law, the only formal obligation that national organs have is to take utmost account of those instruments, following Grimaldi. Google Scholar

²⁰¹ For an argument that Mangold is actually not a case where horizontal direct effect of Directives was further confirmed, see Schiek, supra note 199, at 337. Schiek argues that, “a Directive… having direct effect on a legislative activity that impacts on horizontal relations is not the same as a directive having horizontal effect itself.” While the argument is technically correct, the ultimate result of the judgment is nevertheless to create a situation in which the rights and obligations of two private parties (employer and employee) are de facto impacted by the non implemented Directive in question.Google Scholar

²⁰² Finnemore & Toope, supra note 24, at 743.Google Scholar

²⁰³ Here we refer to the possibility of multi-party agreement secured at public consultations preceding the adoption of competition soft law.Google Scholar

²⁰⁴ Schauer, supra note 8, at 38.Google Scholar

²⁰⁵ Finnemore & Toope, supra note 24, at 749.Google Scholar

²⁰⁶ Scott & Sturm, supra note 36, at 570–75. See also Stefan, supra note 2, at 219–25.Google Scholar