Persuasive rather than ‘binding’ EU soft law? An argumentative perspective on the European Commission’s soft law instruments in times of crisis

This paper starts from the premise that argumentation in EU (Commission) soft law instruments is essential for their effectiveness, mainly due to its function to persuade addressees as a means to enhance compliance. Notwithstanding their importance in the EU legal-political landscape, the problem is how to ensure that these instruments devoid of formal legally binding force can function as effective governance tools by convincing addressees to comply, particularly during crisis periods such as the Covid-19 crisis, when fast and effective action is urgently needed. By pointing at a number of significant legal problems and concerns deriving from the Commission’s ‘hardened’ soft law instruments, we suggest a normative approach focusing on the potential of EU soft law instruments to act as highly persuasive tools. By making the instruments’ argumentation a core concern, we examine its role as a means to improve the intrinsic quality of EU (Commission) soft law and to foster effective compliance. To this end, we propose a theoretical-analytical framework combining insights from law and argumentation theory, that puts forward an argumentative toolbox for the analysis and assessment of EU (Commission) soft law instruments. This toolbox comprises four argumentative parameters that need to be taken into account in the drafting and evaluation of EU (Commission) soft law instruments: (1) the content of the argumentation, (2) the design of the arguments pointing at persuasive suggestions for cooperation, (3) the factors influencing argumentative effectiveness, and (4) the soundness of argumentation.