As a previously unknown virus, the spread of the coronavirus challenged not only medical science and public health systems, but also public governance in all countries. In order to tackle the COVID-19 crisis in China, public authorities at various levels have issued a large number of measures that have no legally binding force, but produce practical effects. A closer look at selected COVID-19 measures in China shows that both the advantages and drawbacks of soft law are brought to the fore by the pandemic. This contribution, focusing on Chinese experiences with COVID-19 soft law, argues that the lack of legal bindingness and consequently of legal enforcement does not make soft law measures ineffective. On the contrary, these “defects” ease the adoption of soft law and ensure its availability to both public authorities and citizens, hence increasing its effectiveness in combating the pandemic. Yet problems remain in realising participatory possibilities and ensuring respect for legality.

In the coronavirus pandemic that has swept the world, the Finnish Government, like many of its peers, has issued policy measures to combat the virus. Many of these measures have been implemented in law, including measures taken under the Emergency Powers Act, or by ministries and regional and local authorities exercising their legal powers. However, some governmental policy measures have been implemented using non-binding guidelines and recommendations. Using border travel recommendations as a case study, this article critically evaluates governmental soft law-making. The debacle over the use of soft law to fight the pandemic in Finland revealed fundamental misunderstandings about the processes and circumstances under which instruments conceived as soft law can be issued, as well as a lack of attention to their effects from a fundamental rights perspective.

In combating the coronavirus pandemic in Germany, soft law has played an important, albeit not a central, role. Its use basically corresponds with that of “normal circumstances”. In accordance with the German constitutional order, almost all substantial decisions are made in a legally binding form. However, these are often prepared through or supplemented by soft law. This article shows that soft law has played an important role in fighting the pandemic and its effects in Germany, although there cannot be any doubt that legally binding forms of regulation have prevailed. At the same time, the current pandemic has shed light on the advantages and effects of soft law in the context of the German legal order.

Greece emerged as the EU’s poster child in the fight against COVID-19 during the first few months of the pandemic. In this contribution, we assess Greece’s use of soft regulation in its regulatory response to COVID-19. Using “acts of legislative content”, which can be broadly conceptualised as softly adopted hard law, the Greek government largely achieved flexibility and simplified adoption procedures without having to resort to soft law per se. The role of soft law was limited - it complemented hard law rather than constituting the primary basis of COVID-19 restrictions - but not completely negligible. Soft law instruments regulated the processing of personal data, and was also pivotal in clarifying the criminal sanctioning of COVID-related rule violations. Greece’s success in handling the first wave of the pandemic, while effective, was arguably unfair to asylum seekers who saw their right to apply for asylum curtailed, and their right to freedom of movement restricted when limitations on the rest of the population were lifted. With a second wave of infections currently in full swing, it is imperative to keep scrutinising regulatory responses to ensure that they place the health and dignity of every individual (whoever they might be) at their core and fully respect their fundamental rights.

On 13 March 2020 the Hungarian Government announced the immediate closure of all schools throughout the country to prevent the spread of COVID-19 forcing several hundred thousand children to learn from home, and teachers to ensure their education. The Hungarian Educational Authority hurried to issue recommendations on the use of digital education tools. During the COVID-19 pandemic and the special legal order consequently introduced by the Hungarian Government, Hungary has seen the emergence of such non-binding measures adopted by public entities, complementing governmental action against the pandemic, with the aim of providing guidance to bodies exercising a public service function (“addressees”). These protective measures adopted under the special legal order are deemed to be successful and are largely followed by the addressees. Since soft law has hitherto been neglected by both Hungarian administrative governance and the legal literature, the recent burgeoning of non-binding measures deserves scholarly attention. In this article, we set out to map the specific context of the emergence of domestic soft law and the conditions for its adoption and reception, relying on our case study conducted in respect of the National Educational Authority’s recommendations.

This article considers the role of non-binding legal instruments adopted in Italy against the SARS-CoV-2 virus in the early months of 2020. To verify whether the use of such instruments restricted fundamental and human rights beyond constitutional and legal limits, the article first gives an overview of hard law measures adopted in Italy against the coronavirus. It then focuses on soft law measures, the use of which became significant only in Phase II of Italy's response to COVID-19 and argues that non-binding legal instruments provided the public with instructions on gradually returning to normal life. This contribution contains case studies on the soft law measures adopted in relation to private economic enterprise and freedom of worship. Italian soft law deployed during the COVID-19 epidemic was borne out of coordination between the state and the Regions and as the result of (even informal) dialogue with the relevant stakeholders. Despite some criticism of the soft law measures used, their role in restricting constitutionally granted rights was marginal, because only hard law measures adopted nationally and locally limited personal rights and freedoms in order to contain the pandemic.

Early in the COVID-19 pandemic, between March and July 2020, Spanish national and regional authorities made extensive use of soft law mechanisms to fight the spread of the virus and to tackle the consequences of the crisis. Soft law was used either as an instrument in and of itself, or as a justification for hard law instruments, with more than 200 non-binding measures being enacted by the state and by the Autonomous Communities. Spanish courts also used soft law as a tool to interpret existing hard law instruments, Such uses give rise to concerns about the transparency of administrative action and the principle of legal certainty. Moreover, the widespread use of soft law to justify the adoption of binding measures restricting fundamental rights might have consequences for democratic accountability and judicial control of executive action. This article indicates the need to reconsider the current system of constitutional and legal constraints attached to this form of regulation, by introducing some binding procedural rules relating to its adoption and its publication, and by clarifying its legal effects and the mechanism through which it can be enforced by courts.

Swedish measures to fight the spread of COVID-19 differ from the strategies used in other comparable countries. In contrast to the lockdown approach that has been applied in many European countries, the Swedish strategy has been based to a substantial extent on individuals taking responsibility under non-binding recommendations. This contribution explores the Swedish strategy from a constitutional and administrative law perspective, highlighting the tension between the formalist system for delegating norms under the Swedish Constitution and the pragmatic use of non-binding rules such as the “General Recommendations” adopted by the Public Health Agency. The article concludes that the official use of soft law instruments is confusing from a legal perspective, because non-binding rules do not offer the traditional formal mechanisms for legal protection, the publication of norms or accountability. The legal-realist approach of the Supreme Administrative Court’s case law, however, has the potential of balancing some of the unfortunate effects arising from the Swedish combination of formalism and pragmatism.

While soft law is an integral part of the efficient and effective functioning of public administration in England & Wales, the extent to which it was deployed in response to COVID-19 is striking, with over 400 pieces of “guidance and regulations” created. In this article, we consider the general place of soft law in administrative law in England & Wales and the broad regulatory framework, including soft law, that governs the COVID-19 pandemic. This allows us to take a deep dive into COVID-19 and the criminal justice system, showing how the senior judiciary relied predominately on soft law (judicial guidance and protocols) to manage the system (set against the backdrop of targeted legislation and a limited number of Practice Directions, which have the force of law). We argue that the senior judiciary’s approach to the use of COVID-19 soft law has, in many ways, been more effective than that taken by the government. Yet there remains room for improvement, particularly in the nature of the judicial guidance issued and about what guidance was in place and when.

This article takes issue with the legitimacy of EU soft law instruments issued to deal with the COVID-19 crisis. Up to August 2020, we identified a total of 197 such instruments, and analysed the procedures for their adoption. We found little evidence of parliamentary involvement or stakeholder consultation, with COVID-19 soft law replicating decision-making patterns which have been constantly criticised in the literature as illegitimate and opaque. Giving due consideration to the exceptional nature of these measures, the article suggests some quick fixes which might increase, ex post factum, the legitimacy of these instruments.

This article discusses the role of European Union (EU) State aid law in the COVID-19 crisis. It contends that different Treaty derogations have played unique roles in addressing the core determinants of the economic risk linked to the pandemic (ie the “exposure” to lockdown measures and the “vulnerability” of certain sectors to them), and in increasing the resilience of national economies. Moreover, this article examines the extent to which EU State aid law has been used to manage and mitigate health risks, by allowing Member States to enhance the preparedness and capacity of their healthcare sector (broadly conceived) to respond to the pandemic. On the whole, this article maintains that State aid control has been used by the European Commission as an important “risk management tool”, and it highlights the role of the Commission as the crisis management authority.

More than 40 years after Cassis de Dijon, the mutual recognition in the field of goods is still a failure. The promise of this principle for ensuring both market access and regulatory diversity has not been kept. Therefore, today, businesses rarely rely on mutual recognition to sell their products in another Member State. In an attempt to stimulate this procedure further, the European Union legislator tried to simplify the procedures to be followed by businesses and public administrations through Regulation 2019/515. This article argues that, although the Regulation creates more legal certainty, it fundamentally fails to address the underlying problem of lack of trust that has stalled mutual recognition in the past.

Personalised nutrition, the tailoring of nutrition products, services or advice to individual characteristics such as genetics, phenotype, nutritional intake and/or exercise routine, is increasingly attracting the interest of industry, consumers and researchers. This article provides an overview of the current European Union (EU) regulatory framework as applying to personalised nutrition and draws attention to the important role of EU food law in the regulation of this innovative approach to nutrition. It is argued that personalised nutrition challenges the regulatory borderline between health and lifestyle products or services and, furthermore, also pushes the boundaries of current food safety and health claims legislation.

On 23 October 2019 the European Union enacted the Whistleblower Protection Directive. The directive introduces important common standards of protection for whistleblowers reporting on breaches of EU law and significantly increases the level of protection afforded to whistleblowers in many EU Member States. Many of the features of the directive go further than pre-existing national whistleblower protection regimes, particularly in relation to the categories of persons who may benefit from the protections under the directive and in terms of the flexibility of the prescribed reporting procedures. Nevertheless, the directive's effectiveness may be limited by certain grey-areas and missed opportunities in the final text of the instrument.

Evolving consumer tastes and competing food trends have made the modern foodscape ever more complex for food and beverage companies to navigate. Not only must food companies deliver products that are safe to consume, but they must also be wary of consumer perceptions of risk, which can undermine new foods and established brands. Risk communication refers to the collection and analysis of real-time information through social listening and other avenues to provide advice to organisations and individuals facing threats to their economic or social well-being. Companies use a range of tools in this area, including polling and social media monitoring, in addition to social listening; however, these tools often fail to get at the sentiments that underlie the concerns identified. Behavioural science is particularly relevant to companies working in controversial sectors to anticipate issues and to respond before they become problems. For this reason, companies are establishing behavioural science teams in order to improve strategic decision-making and enhance the effectiveness of marketing campaigns.