EU soft law typically serves as an interpretative tool helping with enforcement of EU hard law, especially when hard law provisions are indeterminate or open-textured. The power of soft law making brings with it the risk that an EU institution issues a soft law act going beyond the binding provisions that it is intended to interpret. In such a scenario, the soft law act does not ensure the enforcement of EU hard law, but rather sets new rules, which may be considered as circumventing the legislative process. This is just one of the reasons, why it seems vital to make EU soft law acts subject to judicial review by the CJEU.
In its judgment in Belgium v. Commission (C-16/16 P), the CJEU confirmed that it is not willing to accept direct judicial review of EU soft law acts within the action for annulment under Article 263 TFEU. At the same time, the Court emphasized that soft law acts are not fully exempted from judicial review since there is preliminary reference on validity under Article 267 TFEU that is open to all acts of EU institutions “without exception.” However, does this procedural channel present an adequate substitute? The following text points to several problematic aspects linked to the limited possibility to challenge the validity of soft law acts only within the preliminary reference procedure.
First, taking into account the time limit of two months, direct review of legality takes place immediately after the act is issued, and therefore it is rather preventive. On the other hand, before the preliminary reference procedure is launched, several procedural steps are usually taken at the national level. The case thus appears before the CJEU when a soft law act may have already influenced the conduct it addresses or third parties, and its eventual invalidation is done with delay.
Second, within judicial review under Article 263 TFEU, an act of an EU institution can be challenged by another EU institution or by the Member States. However, these actors have no direct opportunity to initiate a preliminary reference procedure. When it is in their interest to challenge a soft law act, they must do so by supporting strategic litigation; finding a pending case or potential litigants who would be willing to initiate national judicial proceedings. The institution or Member State must then lobby for the issue to be raised in front of the national court and persuade the court to refer the issue to the CJEU through the arguments of litigants. In other words, when the privileged applicants believe that a soft law act breaches, for example, the principle of institutional balance or the division of competences, they may not use the direct avenue of action for annulment. Instead they must search for individuals whose legal sphere might be negatively affected by such an act and who would agree to take the issue through the national courts to Luxembourg.
Third, even from the perspective of an individual, the preliminary reference procedure seems to be less efficient than the direct action. As recalled by AG Jacobs in his opinion in Unión de Pequeños Agricultores (C-50/00 P), national courts, except for the courts of last instance, may refuse to refer questions to the CJEU and the way to the highest instance can be lengthy. Even the courts of highest instance might err in their preliminary assessment of the validity of the contested measure and therefore refuse to make the reference. Moreover, proceedings before national courts are disadvantageous for individual applicants because they involve substantial delays and costs. All the disadvantageous aspects of the preliminary reference procedure may also be pertinent for a Member State attempting to invalidate a non-binding act. It takes time, it is costly, and it is not certain that the domestic court will be willing to refer the case to Luxembourg.
Apparently, the preliminary reference as a strategic tool to contest validity of a legally non-binding act faces many obstacles that are not present in judicial review under Article 263 TFEU. It is questionable whether an EU institution or a Member State would use this procedural avenue in order to challenge a soft law act as invalid.
In any event, the current procedural setting clearly illustrates that the Court disposes of the power to invalidate a soft law act, but this power may not be used within the action for annulment. It creates a discrepancy: when an act is challenged directly and no binding legal effects are detected, the Court can easily ignore it, although such an act might potentially breach important principles, such as the principle of institutional balance or division of competences. When the very same act finds its way to Luxembourg through the dense bush of preliminary reference procedure on validity, then the Court will probably be ready to assess it in its entirety, regardless of the lack of binding legal effects, and eventually invalidate it. And as described above, the second option is more time demanding and less efficient than the direct action.
The avenue of preliminary reference procedure on validity therefore does not appear as a fully-fledged alternative to the direct action and cannot be considered a convincing solution to ensure judicial control of legally non-binding acts, which should help with enforcing EU hard norms. Moreover, it is important to mention that the Court of Justice of the EU has never performed an assessment of validity of a soft law act within the preliminary reference procedure. Therefore, the option to use this procedural channel remains rather theoretical.
A devil`s advocate would probably suggest as a solution: “If it is a genuine soft law act, it does not bind anyone. So, if you do not like it, just ignore it and do not bother the Court.” However, would it be wise to leave soft rulemaking power of EU institutions without any judicial oversight? Hopefully, the CJEU will soon offer some clarifications.