Edited by Udo Diedrichs, Wulf Reiners and Wolfgang Wessels
Chapter 2: Soft Law as a New Mode of Governance
Anne Peters1 INTRODUCTION From the beginning, European Community (EC) and European Union (EU) practice has relied on a range of instruments which were not as such legally binding or whose legal status was unclear. Nevertheless, until the turn of the millennium, the concept of European ‘soft law’ was hardly discussed in the legal scholarly literature.2 Although some attention has been paid to interinstitutional agreements (Snyder, 1996 and Hummer, 2004), the overall phenomenon of soft regulation has been much less thoroughly explored on the EU level than it has in public international law. Textbooks and general courses on European Union law still either do not mention soft law at all or only treat it in an extremely cursory fashion with only a few standard examples. Interest in European soft law mounted with the new millennium’s debate on European governance and better regulation (European Commission, 2001a). Soft law and self-regulation are meanwhile envisaged by the European institutions themselves as regulatory alternatives (for example in the Commission’s 2002 Action Plan Simplifying and Improving the Regulatory Environment; European Commission 2002a: 11–12). EU modes of governance can be analysed along the two dimensions of steering methods and of actors. Modes may be called (relatively) ‘new’ when their steering function is characterized by (1) informality and (2) lack of hierarchy, and when private actors (both profit-making and non-profit entities) are systematically involved in policy formulation and/or implementation (Börzel et al., 2005). Joanne Scott and David Trubek highlight the following characteristics of new modes of...
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