Evading the burden of proof in European Union soft law instruments: The case of Commission recommendations
Additional information
Authors
Andone C.,
Greco S.
Type
Journal Article
Year
2018
Language
English
Abstract
The European Union is making increased efforts to find simpler and more
effective ways to function adequately in the eyes of its citizens by using ‘soft law’
instruments such as recommendations. Although they have no legally binding force,
recommendations have practical and legal effects occurring partly due to their
normative content in which a course of action is prescribed and further supported by
arguments intended to persuade the addressees of a political position. Although
recommendations function as persuasive instruments due to their argumentation, the
characteristics of argumentation and how it is employed to convince the addressee
to comply with certain measures have not been investigated at all. The main goal of
the paper is to explain how arguments are used by the European Commission when
recommending Member States to follow a new course of action. First, we will
unravel the justificatory reasons employed by the Commission in order to make
Member States comply with new measures and we will show how these reasons are
combined into an argumentative pattern (van Eemeren in Argumentation 30(1):
1–23, 2016; J Argum Context 6(1): 3–26, 2017). This pattern basically prescribes a
course of action to Member States, which is further supported by arguments in
which the necessity and advantages of following the proposed course of action are
justified. Second, we will explain how and why the way in which the arguments are
combined in this complex pattern could be potentially persuasive for the Member
States despite the legally non-binding character of recommendations. We will show
that the European Commission tries to persuade the Member States to take new
measures by evading the burden of proof imposed by the legislative framework. At
a more specific level of analysis, we will delve into the implicit premises in the
argumentation, which enable us to identify cases of evasion of the burden of proof due to the Commission’s use of implicit starting points which might not be accepted
by the Member States.
Journal
International Journal for the Semiotics of Law
Volume
31
Number
1
Month
March
Start page number
79
End page number
99
Keywords
argumentation; public communication; European Union; burden of proof; argumentative pattern;
