The instruments of Eurozone fiscal surveillance through the lens of the soft law/hard law dichotomy—Looking for a new approach

The past decade has profoundly reshaped the fiscal governance system of the Eurozone. Supranational prerogatives vis-à-vis State budgets have been significantly expanded, thereby redefining the nature of Union action in the field of fiscal policy and transforming the dynamics between the Union and its Member States. In spite of its overhaul and the practical effects that Eurozone fiscal governance now produces on the ground, the paper shows that overall, this regulatory system still formally qualifies as soft law. This results in a deep disconnect between the form and substance of Eurozone fiscal surveillance in the Eurozone, which raises a number of constitutional challenges. The paper shows that the source of this disconnect is to be found in the strict apprehension of the hard law/soft law divide and the narrow understanding of bindingness attached to it, which currently prevails in the legal discipline, but no longer corresponds to the realities of the EU’s regulatory practice. From there on, the paper offers an alternative approach towards the distinction between hard and soft law, based on a renewed, more open and contextual, understanding of the concepts of bindingness and legal effects, which might reconcile the form and the reality of Eurozone fiscal governance nowadays.