The unbearable lightness of soft law: on the European Unions recourse to informal instruments in the fight against irregular immigration

Recourse to soft law instruments within the legal order of the European Union (EU) is a well-established practice. By the same token, the Union’s institutions make frequent use of atypical or informal instruments, meaning instruments different from recommendations and opinions, as defined in primary law in article 288 TFEU, and different from any of the other non-binding acts defined in the founding Treaties. The Court of Justice of the European Union (ECJ) has not seen fit to disturb this practice, deeming it in principle legitimate. However, there are serious concerns about this informal approach, especially in light of the practice that has recently emerged in the management of the so-called ‘refugee crisis’. Indeed, in fighting irregular immigration, the EU has ample recourse to atypical instruments that are declaredly non-binding on the EU or on the subjects of EU law, and by and large these instruments seem to elude the model just described. The present chapter is in the first place concerned with reconstructing this informal practice so as to then outline the way its institutional ramifications – of systemic breadth – affect the supranational legal order.