Hard and Soft Law in the Construction of Social Europe: The Role of the Open Method of Co-ordination

Much of the debate concerning the Open Method of Coordination in general and the European Employment Strategy in particular concerns the respective merits of “hard ” and “soft ” law in the construction of Social Europe. Both those who favor the OMC as a mode of governance and those who question compare it, implicitly or explicitly, with the Community Method. The Community Method is thought of as “hard law ” because it creates uniform rules that Member States must adopt, provides sanctions if they fail to do so, and allows challenges for non-compliance to be brought in court. The OMC, which has general and open-ended guidelines rather than rules, provides no formal sanctions for Member States that do not follow the guidelines, and is not justiciable, is thought of as “soft law”. Proponents of the OMC argue that it can be effective despite – or even because of – its open-ended, non-binding, non-justiciable qualities. Opponents question that conclusion. They argue not only that the OMC cannot do what is needed to construct Social Europe and that “hard law ” is essential; they also contend that use of the OMC could undermine efforts to build the hard law they think will be needed. On close analysis, this debate turns on a number of highly contested issues. These include