Hybridity before the Court: a Hard Look at Soft Law in the EU Competition and State Aid Case Law


European Law Review

February 2012, vol. 37, n°1, pp.49-69

Keywords: Competition law, EU law, Guidelines, Legal methodology, State aid, soft law, judicial politics

This article explores the interface between classic government structures -- the courts -- and key governance tools -- soft law. It presents the quantitative and qualitative results of research that asks the questions of whether and how soft law is reflected in the European competition and state aid case law. It suggests that soft law is taken seriously by the Court of Justice of the European Union, and figures more and more in the judgments, orders and opinions issued in these areas. The case law recognises legal effects for soft law instruments through the mediation of general principles of law. The article argues that, through the mechanisms of the judicialisation process, the European Courts have rubber-stamped hybrid modes of regulating competition and state aid and have embedded soft law within the constitutional legal framework of the Union, while at the same time endowing traditional legal values with new functions in a “new governance” context.