Recommendations from the Council of the European Union have a quasi-binding nature which influences court rulings, national legislation, and even advocacy efforts. This situation raises a question: how democratic is it for a legal tool of such influence to bypass the democratic scrutiny to which regulations and directives are subjected? The term “Council recommendations” might seem to imply that these recommendations are driven by the Council, reflecting the views of the member states. In reality, they are primarily a vehicle for the Commission to push forward its harmonisation agenda in areas where the EU has limited legislative competence. The texts are drafted by the Commission and generally pass through the Council with minimal changes.
The number of policies following this backdoor route is increasing rapidly. Scholars estimate that, during the pandemic alone, up to 238 pieces of ‘soft law’ were adopted. These proposals have increased in prominence in the last decades, couched in arguments of flexibility and adaptability. But making law in this way comes at a price for democracy which can no longer be overlooked.
Although Council recommendations are non-binding under EU law, many overlook that they nevertheless have the potential to cause significant legal effects, as confirmed by the EU Court of Justice. In the landmark Grimaldi case, the Court ruled that Council recommendations must be considered by national courts when interpreting EU and national laws. Recommendations, therefore, often act as a reference point for national judges, quietly shaping how laws—even national laws—are interpreted and enforced.
Council recommendations are most commonly applied in areas such as economic and monetary policy, public health, and social policy. In Slovenia, Council recommendations related to excessive deficit were acknowledged by the National Assembly as binding obligations under EU law. The Slovenian Constitutional Court recognised that, while the recommendations are ‘soft law,’ they nonetheless serve as “constitutionally relevant considerations.” The recommendations therefore became a legitimate legal basis for Slovenia’s fiscal reforms, ultimately leading to adjustments in taxation and public spending as well as reforms in the pension system.
In the area of public health, the 2009 Council recommendation on smoke-free environments called on member states to legislate against smoking indoors by November 2012. By that deadline, 13 member states had adopted rules aligning with the recommendation. The Commission reported actively working with Poland, Luxembourg, Hungary, and Bulgaria to ensure smoke free legislation there. Notably, in 2013, the Commission went as far as to report there had been good progress in “transposing” the recommendation into national law—language generally confined to binding acts, which suggests that the Commission treats recommendations with an expectation of compliance akin to formal legislation.
Social policies across the EU cannot be understood without the Council recommendations on social protection. These recommendations facilitated regular cooperation on social policy and influenced Court rulings that blurred the distinction between the principles of national welfare and the internal market, enabling the EU to take a more active role in coordinating social protection efforts. Among other outcomes, these recommendations led to the establishment of the EU’s Open Method of Coordination for Social Protection and Social Inclusion (OMC) and the resulting national action plans to achieve EU-wide social objectives.
These cases, and many others, all demonstrate a common theme: that recommendations, though non-binding, can and do influence national legal and regulatory systems. Yet it is not just courts and policymakers who rely on Council recommendations. Advocacy groups often invoke them, too. Across Europe, social NGOs lobbied for an ambitious Council recommendation on adequate minimum income. Ultimately, NGOs felt dissatisfied, believing that the recommendation could have gone further were it not for member states’ resistance to a more prescriptive text. Through mechanisms like systematic monitoring, benchmarking, and regular policy assessments, Member States anticipated that the recommendation could pressure them to align with EU standards.
The Commission, in its ever-growing quest to push through policy changes, may find recommendations a convenient tool. They are easier to pass and less likely to face the kind of public or political opposition which accompanies binding legislation. The European Parliament—the only institution directly elected by the citizens—does not have a formal say in the recommendation process. In fact, MEPs’ opinions on recommendations are often ignored.
We should no longer ignore Council recommendations. They are far from benign, non-binding suggestions, despite the fact that they are often portrayed in that way by those who wish to use them to advance policy. The Commission may find it convenient to downplay their impact in order to push them through, but this approach raises serious questions about democratic accountability. EU citizens deserve more than backdoor policy making. It is time to slow down, reduce, and carefully scrutinise Council recommendations in order to ensure they are subject to stronger checks and counterarguments, and that they are supported by the most robust evidence.
