Summary:
The field of action of the Regulatory Administration is constantly increasing. Consequently, there is a tendency for the Regulatory Administration to take increasingly actions aimed at guiding the behavior of their recipients, without the recognition of rights and the imposition of obligations, and with a certain degree of standardization that is appropriate to the forms of classical law. This soft law, however, differs from the traditional administrative act both in terms of its formal training process and of the requirement that it accompanies it. The violation by the administrator does not - at least not directly - impose sanctions; on the contrary, soft law plays a pedagogical role, orienting behaviors. It is a frequent point of reference and the individuals often choose to to be subordinated for it. Other times, it is a means of warning (see recommendations), while at other times it is a way of commitment of the administrative action. In any case and for reasons of legal certainty, soft law acts have some common features, which allows them to be grouped and separated from the hard law by using specific criterias.
The use of soft law by the administration is undisputed. Its integration into legal reality requires the use of the concepts that classical theory of administrative law has inherited to us. Thus, most of those acts are similar to normative ones because of the general and impersonal character they often present, but it is also possible that individualized acts of soft law will also be issued.
Soft law, although lacking legal binding, is not without significant consequences for its recipients. For this reason, it is necessary to find the appropriate tools to ensure effective judicial protection for the individuals. The legal remedy of the application for annulment before the Board appears to be appropriate in the case of soft law, because the court is restricted to reviewing its legality, thus avoiding the substitution of the judge for the administration. In addition to this, the administrator will always be able to bring an action for damages, and in this case the soft law will be able to be checked, incidentally, as a criterion for controlling the administrative action, on the other hand directly when it is outraged by its offending behavior.
In order to ensure judicial protection through the cancellation request, it is necessary to realize that the concept of enforceability is a functional concept. Its function is to ensure the legal remedy so that the person in charge does not lose his right, in this case that of his legal protection. Besides, it is not a field of action of the administration that is not judicially controlled.
The judicial control of soft law is neither a utopia nor a novelty. It appears, as self-evident, in the Anglo-Saxon legal systems. The United States and Great Britain have shaped their own mechanisms. In continental Europe, the first step happened in France in 2016, with the decisions of the EC "Société Fairvesta International et Autres" and "Société NC Numericable". In Greece, the jurisprudence of the CoE appears to be adapted. From its judgment on the non-enforceability of the Guidelines in the no. 4474/2014 and 2357/2014, in which he reiterated the rationale of his earlier decisions, we are guided by the jurisprudence on the special spatial frameworks, the case law on the Mall and the double regeneration in the Botanic and on 1007/2016, resulting in the decision 303/2017 , which inter alia cancels the individual actions of return from the PPCD of the applications for the licensing of small wind turbine projects and the failure to promote corresponding requests.
It seems to be a matter of time, until legal control of soft law is also lawful in Greece. When this is done, interest will show if the CoE will move in the direction of the CE or if it carries its own path.
Thus, pending developments, the whole issue of the judicial of soft law, that is to say, the abillity of being the subject to judicial review or not, is summarized in the statement that: although it is soft (mild, loose) it is still law.
