L'armonizzazione normativa mediante gli atti di soft law della Commissione europea: uno sviluppo ipotizzabile?

Normative harmonization at the supranational level can be described as the search for a “common normative denominator” to which the EU Member States are required to adapt their legal systems. The functional nature of what is called “positive harmonization” requires that the institutions of the European Union choose the instrument deemed most suitable for achieving the objective to be pursued. As known, the institutional practice emphasised the recourse to non-binding instruments, considered to be as productive of “juridical effects” due to their suitability to indirectly affect the conduct of certain categories of subjects or of the Union institutions themselves. In particular, the European Commission adopts this type of acts in the field of competition and in the exercise of the executive competences conferred by the treaties. In this context, the question arises whether the use of soft law acts may contrib- ute to harmonizing, albeit indirectly, the national regulations of the EU Member States. The answer is strongly conditioned by the crucial matter of defining the notion of “legal efficacy” for this particular type of acts which is characterized in heterogeneous terms and which finds the non-binding nature of the provisions contained therein as the only common character.