The communications of the Commission on environmental matters have become important guideposts for its ambitious yet complex reforms, starting with the 2019 Green Deal. This study proposes a systematic analysis of the functions of environmental communications based on data gathered from the EUR-lex database. All environmental communications dating back to 1999 were catalogued and their citations in other acts of Union bodies tallied to better understand the functions they have played and how their impact has evolved. Informative, interpretative and normative functions are analysed in the light of this data and specific cases. The data show that the impact of communications has increased significantly since 2018, especially those with ‘informative’ content: indeed, many of them also take on interpretative and normative functions. This growing role can be explained by their value in promoting the coherence of the Union’s legal order, as the Commission embarks on ambitious Green Deal reforms. This suggests that it may be incorrect to rule out the soft-law nature of this type of communication a priori.

SOMMARIO:

I. Introduction and methodology of the study - II. The informative function of environmental communications - III. The interpretive function: shaping the way binding law is construed - IV. The normative function: orienting the exercise of discretionary powers - V. Environmental communications as soft law: benefits and risks. - NOTE

I. Introduction and methodology of the study

Non-binding instruments have played a key role in the development of European environmental action ever since the Commission’s 1971 communication on Community environmental policy. [1] At that time, environmental protection was not included among the Community’s objectives, nor did the treaties offer an explicit legal basis for its institutions to carry out environmental action. [2] Nonetheless, the communication affirmed that common environmental policy was needed in order to protect the common market, affirming that: “Improvement of the quality of life, through effective pollution control, and of man’s environment is now a primary aspect of the “harmonious development of economic activities throughout the Community”, a task laid upon the Community by Article 2 of the Treaty.” Three years later, another non-binding act, the first Environmental Action Programme, was adopted, and not long thereafter the first environmental directives and regulations. Ever since, the Commission has continued to publish communications on environmental matters, often with the same innovative spirit. What has changed in recent years is their influence. The Green Deal—a communication adopted in December 2019 [3]—has had an unprecedented impact on the environmental law and policy of the Union. At time of writing (May 2023), it been cited in nearly 1600 acts by Union bodies: 140 proposals for decisions, directives and regulations, 56 legislative acts, over 200 other non-binding instruments adopted by the Commission and 1100 other acts by EU organs, far more than any previous communication in environmental matters. But is the impact of the Green Deal an anomaly, or does it reflect a broader trend? More generally, how is the use and function of communications in environmental matters evolving, and what are the implications about their place among the sources of “soft law” in the Union? To understand this, it is necessary to systematically study the practice relating to environmental communicationsof. Scholars have proposed various ways classifying communications according to their contents. [4] Senden, following the case law of the CJEU, [5] suggests distinguishing between informative, interpretive, and declaratory or decisional communications. [6] In this schema, informative communications that present the Commission’s views on a particular topic (including its proposals for [continua ..]

II. The informative function of environmental communications

The first group is what Senden refers to as informative communications. [11] Their primary purpose is to set out the Commission’s views in relation to a topic, including its proposals for what further action should be taken in pursuit of environmental objectives. Some informative communications also serve a “pre-law” function, announcing the key objectives and even specific content of legislative proposals the Commission intends to present. [12] It can be questioned whether a communication that serves a purely informative function can be deemed to be soft law. Indeed, in his widely-cited definition of soft law in the EU, Snyder defines it as, “rules of conduct which, in principle, have no legally binding force but which nevertheless may have practical effect.” [13] Senden, emphasizing the need for a soft law instrument to contain rules of conduct (albeit ones that are non-binding), accordingly concludes that informative communications are not soft law. [14] Outside the context of the EU, international legal theories also tend to draw a line between soft and hard law based on whether or not a given rule of conduct is binding and/or enforceable, [15] but even within the ‘relative normativity’ of the international legal order, [16] it may be hard to argue that a document that contains no rules at all is soft law. The definition of soft law as consisting in non-binding, non-enforceable rules have led some to question the value of the concept of soft law. [17] For Klabbers, soft law is connected to the existence of multiple self-contained regimes within the international legal order. Soft norms are associated with soft responsibility, that is, norms that are backed by sanctions of a political or moral nature instead of rules of state responsibility. However, Klabbers notes that in practice, states tend to invoke soft law as evidence of the existence of customary legal rules, not as a source of soft responsibility. In short, he questions why international legal theorists should insist on the existence of this category of norms that ill-reflects state practice. [18] Other commentators take a more fluid approach to soft law, focusing not on the text, but on the practical function of a document as part of a ‘soft’ process of interstate cooperation. In this line, Trubek, Nance and Cottrell ex­plore the extent to which the use of soft law can be explained by both [continua ..]

III. The interpretive function: shaping the way binding law is construed

The second group of environmental communications are those used in the interpretation of the environmental acquis. Here, again, there can be a disconnect between the content of a communication and the function it plays. Some communications are expressly intended to ensure the uniform interpretation of Union law, following the Cassis du Dijon communication of 1980. [40] As the Court of Justice held in Grimaldi, Member States are bound to take such soft law instruments into account when interpreting secondary law “in particular where they cast light on the interpretation of national measures adopted in order to implement them or where they are designed to supplement binding Community provisions”. [41] However, even communications that are primarily informative in design have been drawn upon to interpret environmental law, based upon the hermeneutical principles of the Union’s legal order. [42] At an international level, soft law is often used as an interpretive aid. This is particularly frequent in environmental law, a field characterised by indeterminate language in binding legal provisions (“framework norms” in the terms of J. Scott). [43] Environmental treaties also contain many terms and principles that lack clear definitions, such as “sustainable development” and the “high level of protection”. This ambiguity can, on the one hand, offer an opportunity for updating our understanding of these notions in the light of scientific progress and cultural shifts, a process in which soft law can be of great value. [44] However, Klabbers finds this view problematic, noting that soft legal documents are often just as linguistically vague as the treaties they are used to interpret, and that if they were not, they would cross the line into hard law. [45] In his view, recourse to soft law make interpretation an inherently subjective process, undermining the uniformity of legal rules. However, while this may be true in the international legal order, this arguably is less of a concern within that of the Union. The non-binding acts of the Commission offer a level of detail and precision that is often lacking in international environmental soft law. Thus, the Commission can use this tool to integrate both primary and secondary legal rules to prevent conflicting implementation from undermining the level playing field among Member States. The practice studied relating to environmental [continua ..]

IV. The normative function: orienting the exercise of discretionary powers

The last group of communications are those setting out rules that the Commission commits itself to follow in the exercise of its discretionary powers. [63] It is in this sense that we can speak of a communication carrying out a “normative” function. As the Court of Justice has held, when the Com­mission issues soft law committing itself to follow certain guidelines in the exercise of its discretionary powers, it is bound by these unless following them would give rise to a breach of the Treaties or of general principles of law, such as the principle of equality. [64] It is true that under Article 288(4) TFEU, soft law instruments cannot be a source of legally binding obligations, as was made clear by the Court of Justice in its 1997 decision in France v Commission. [65] In that case, the CJEU established that even if Article 173 of the EC Treaty (now Article 230 TFEU) explicitly excludes recommendations and opinions from being subject to the action for annulment, what matters is whether the apparently soft act is endowed with the legally binding effects typical of hard law, not its formal qualification. [66] To determine whether this is so, the Court has held that, “it is necessary to examine the substance of that act and to assess those effects on the basis of objective criteria, such as the content of that act, taking into account, as appropriate, the context in which it was adopted and the powers of the institution which adopted the act.” [67] Therefore, if an apparently soft law document produced binding and enforceable legal effects in itself, it could be challenged for its the lack of essential formal and procedural requirements. [68] In any case, soft law that contains rules that have a purely internal effect—that is, they do not affect the rights and obligations of third parties—are not subject to review. [69] We can find evidence that a communication has performed a normative function when it is cited in decisions or other soft law documents relating to state aid or other discretionary powers of the Commission. The practice studied shows that examples of normative environmental communications are rare but increasing. For one, communications have been drawn upon to give form to environ­mental objectives in relation to state aid for biodiversity restoration projects. [70] Biodiversity state aid can involve subsidies or other financial advantages that promote [continua ..]

V. Environmental communications as soft law: benefits and risks.

Overall, the statistical data confirms that communications are increasingly used as a tool to coordinate the activity of the Union’s institutions in view of overarching environmental objectives, whether it be in the production of new legislation, the interpretation of existing rules, or the exercise of the Commission’s discretionary powers. The Green Deal, while exceptional in the magnitude of its impact, can thus be said to be representative of a broader trend. In particular, the data shows that informative communications are now taking on not only a pre-law function, but at times, even interpretive and normative roles. It is true that the growing role of soft law in the Union’s legal order raises questions about its legitimacy. This issue connects to broader questions about the rise of soft law in the international legal order. [83] Klabbers finds that the continued growth of interest in soft law among international legal scholars can be seen as an attempt to justify the decentralization of norm production at an international level and the concentration of power in the hands of bodies that lack democratic accountability. [84] In his view, this is the effect of the increasingly administrative character of international law. The uncertain source of the authority these “soft law” bodies exercise, and their ultimate lack of accountability, is a challenge to the democratic legitimacy of the rules they create. [85] In his words, soft norms are like a “no parking” sign written on a piece of cardboard in front of a building site: nobody will dare to park in front of that sign, even if who wrote the rule, or what consequences could follow from breaking it, are a mystery. [86] Legal scholars attempt to get around this legitimacy problem by insisting on the “soft” nature of these rules, but the substantive issue remains unaddressed. When it comes to communications within the European legal order, some of the issues highlighted by Klabbers arguably do not apply. The source of the Commission’s authority is clear and it is subject to democratic accountability, transparency obligations and judicial review. The limits to the enforceability of communications are also relatively clear, and the CJEU would have the last say if a non-binding communication were to in fact have (illegitimate) binding legal force. In other words, in the legal order of the Union, a fine imposed for parking in [continua ..]

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