Guidance documents of European Commission in Dutch legal order

On Tuesday 11 February Clara van Dam defended her PhD thesis ‘Guidance documents of the European Commission in the Dutch legal order’.

The non-legally binding and highly informal guidance documents of the European Commission play an increasingly important role in the EU regulatory landscape. In several ways, the European Commission assists the Member States in the implementation of EU regulations and directives in the national legal orders. Thus far, little is known about the role and effects of Commission guidance documents in the national legal orders.

This thesis explores what role guidance documents play in Dutch implementing practices and judicial decision-making processes at three different policy areas. To this end, it introduces a new typology of guidance documents, along the lines of which different roles of guidance documents can be identified, and discerns among different perspectives on the binding force of guidance documents.

The in-depth empirical analysis, where interviews play an important role, reveals a differentiated picture: different types of guidance generate different practical effects at the national level. It shows, for instance, that interpretative guidelines leave traces in rulemaking and individualised decision-making practices, whereas implementing and technical guidelines are used to make decisions on the design and form of policy decisions and techniques. Furthermore, the analysis shows that the use of guidance documents is shaped by different perspectives on their binding force, ranging from a ‘cherry picking approach’ to ‘legislation in disguise’.

Although the varied use of guidance documents can be explained in the light of features of informality that govern the issuing and use of guidance documents, it challenges legal principles that govern the implementation of EU law. In her thesis, Clara shows that guidance documents, in practice, do not live up to their ‘promises’ to contribute to a predictable, transparent and consistent implementation process, and that guidance documents risk to jeopardise the rule of EU hard law. A gap between promise and practice thus exists, which renders the legitimacy of guidance as governance tool shaky. The empirical findings therefore invite to rethink governance through guidance. The thesis proposes several routes of ‘guidance for guidance’ that could render guidance documents both an effective and legitimate implementation tool.

J.C.A van Dam (11 February 2020), Guidance documents of the European Commission in the Dutch legal order, (diss. Leiden), Meijers-reeks Leiden: E.M. Meijers Instituut voor Rechtswetenschappelijk onderzoek van de Faculteit der Rechtsgeleerdheid van de Universiteit Leiden.

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