National Courts and European Soft Law: Is Grimaldi Still Good Law?

Abstract

This article discusses the Grimaldi obligation, that is, the duty of national courts to take European soft law into account when deciding cases, in view of the evidence from the longitudinal study of the Grimaldi jurisprudence, it is suggested that although the doctrine has not changed, the world around it has. While the ECJ has not reversed the precedent set by Grimaldi, nearly three decadades of EU soft law making have eroded the foundations of the doctrine to the extent that the obligation has become heavily nuanced. First, to the extent that the soft law measure is issued by an EU institution and its development is foreseen in primary or secondary law, Member State courts can depart from the interpretation offerd in the measure only if they can provide detailed and substantively valid reasons why it should not apply. Secondly, if the soft law instrument is free-standing, that I derived from primary or secondary law, or where non-binding guidance is given by actors other than the institutions, the Member State court has more leeway to decide whether or not to take non-binding guidance into account. The third noteworthy feature that emerges from the analysed jurisprudence is that Member State courts have become more proactive in challenging EU soft law, and, insofar as it is an act of the EU institution, the Court is cautiously accepting validity challenges posed by Member State courts in the preliminary reference procedure. This suggests that if a new or revised Grimaldi is to be found, it should be through judicial dialogue.