Soft Structure vs. Soft Measure: Fleshing Out the Tension in EU Education Policy

EU Education policy is ‘an a priori very lightly Europeanized policy area’ (Alex Warleigh-Lack & Ralf Drachenberg, Spillover in a Soft Policy Era? Evidence from the Open Method of Coordination in Education and Training, 18(7) J. Eur. Pub. Pol’y 1000 (October 2011)), belonging to the weakest type of Union competence, and of all EU policies, it is the one most strongly influenced by open method of coordination (OMC) (Sacha Garben, The Future of Higher Education in Europe: The Case for a Stronger Base in EU Law, LEQS Paper No. 50/2012, 13 (July 2012)), a policy instrument known for its ‘soft’ character. Yet there is a tension between the soft education policy competence and the soft measure of OMC employed in its framework. EU soft competences are generally explained by Member States’ reluctance to attribute competences to the EU in sensitive policy areas, but the soft instruments used in these areas nevertheless ensure compliance, while evading and bypassing competence and decision-making constraints. This general finding, made clear with the help of fiscal federalism and public choice approaches to EU education policy is also relevant in areas of (exclusive) EU legislative competence where soft instruments are used (such as customs policy). The present article tries to shed light on the various manifestations of softness and their ambivalent relationship with the help of the fiscal federalism and the public choice approach.