Forbearance and Enforcement at the European Commission: A Response to von der Leyen

In December 2021, we posted a now-widely-publicized working paper tackling a major puzzle: Why did infringement actions launched by the European Commission against member states (under Article 258 TFEU) plummet since 2004?  As the EU’s “Guardian of the Treaties,” the Commission is the sole EU actor capable of launching infringements against member states that fail to comply with their legal obligations – a crucial tool for the preservation of the EU legal order. Yet from 2004 to 2018 infringements opened by the Commission dropped by 67%, and infringements referred to the European Court of Justice (ECJ) dropped by 87%. Strikingly, this decline spun across nearly all member states and policy areas, and it occurred despite the fact the EU nearly doubled in size and was plagued by a series of crises that involved widely-publicized member state violations of EU law.

We were left scratching our heads. We had uncovered no evidence that the dramatic reduction in Commission enforcement could be attributed to all member states suddenly improving compliance at the same time (we explain why this and other interpretations for the decline in infringements are unconvincing in our study as well as here and here). So, we began conducting anonymous interviews with Commission insiders whose experience spun from the political level to the civil services and from the pre-2004 to the post-2004 eras. These interviewees were broadly in agreement about the answer to our puzzle: The curious case of the declining infringements was the byproduct of an intentional strategy by the Commission that we call “forbearance” – the deliberate and revocable under-enforcement of the law. In this blogpost, we summarize our findings and respond to Commission President von der Leyen’s reaction to our study.

Forbearance, EU-Style

A change in  the Commission’s enforcement strategy, our interviewees told us, had its origins in the early days of the Barroso Commission. Against a backdrop of mounting Euroskepticism, the Commission’s political leadership worried that vigorous enforcement was antagonizing member governments and jeopardizing support for the Commission’s agenda in the increasingly-powerful European Council. Commission President Barroso and other Commission leaders curtailed enforcement to rekindle intergovernmental support for the EU and the integration project. Forbearance, we also learned, was part of a broader process of political centralization in the Commission. Beginning in 2005, decisions concerning whether to drop or pursue infringements that had previously been managed by Commission lawyers and career civil servants were subjected to greater political control by the Commission Presidency and the Secretariat General working at its behest. The creation of the EU Pilot procedure in 2007 enabled the politicization of enforcement by shifting control of infringements from the Legal Service and civil servants in the Directorates General to a system of conciliatory political dialogues controlled by the Commission’s political leadership and member governments.

Forbearance succeeded politically in bolstering intergovernmental support for the Commission: Interviewees even described how member states’ permanent representatives jointly penned a “valentine’s letter” praising the Commission’s softer enforcement approach. But forbearance also produced a pervasive chilling effect amongst Commission civil servants who became discouraged from pursuing infringement cases. And forbearance frustrated citizens and civil society who increasingly saw their complaints to the Commission being curtly dismissed following closed-door dialogues with national governments.

Where Has Europe’s Guardian Gone? A Response to von Der Leyen

Our research sparked a vigorous and productive public debate, both in the media and in the European Parliament. Most importantly, on January 10, 2022, MEP Sophie in’t Veld submitted a priority question to the Commission demanding a response to our findings, querying, “Are you still there, Guardian of the Treaties?” Commission President von der Leyen answered on February 22, reiterating that where there are “breaches of EU law,” “the Commission has a clear enforcement policy to start infringement procedures and to take them forward.”

We want to take this opportunity to reply in turn to von der Leyen’s response, and to explain why we are unconvinced. In particular, her reply’s three main claims – that our statistical results are spurious, that the Commission successfully settles most non-compliance cases via dialogue, and that the Commission supplies clear enforcement data in its annual reports – are either incorrect or misleading.

First, von der Leyen alleges that our statistical findings are spurious, for they are “largely linked to reducing the cases where Member States miss the deadline to transpose directives. This has halved since 2012.” This claim is simply incorrect. Even if we set aside non-transposition cases – which automatically trigger infringements and, according to our interviewees, fall outside the scope of EU Pilot – we showed that discretionary infringements that the Commission chose to pursue (usually in response to complaints) plummeted by 72%, from a yearly average of 578 from 2005-2007 to a yearly average of only 164 from 2015-2017. Our interviewees never alleged that the Commission was being criticized by member states for pursuing automatic, late-transposition infringements. Rather, they alleged that the Commission was being harangued by member states for pursuing infringements that it had the discretion to drop – which is exactly what the Commission increasingly did after 2004.

Next, von der Leyen’s letter claims that the Commission’s “focus on prevention has made it possible to settle 90% of cases through structured dialogue,” without recourse to infringements. Yet this claim is misleading, because it implies that the alleged violation of the law was transparently resolved. In fact, the Commission’s new approach to “settling” these cases is an opaque political process that may not necessarily result in the member state coming into legal compliance. Since complainants – and even the Commission’s own Legal Service – are excluded from the Commission’s pre-infringement dialogues with member states via EU Pilot, the Commission’s decision to close a file and declare it “settled” hinges almost exclusively upon the information supplied by the member state. As our interviewees told us, these dialogues tend to let member states “off the hook” and can prove “counterproductive. Why? Because… in most cases the administrations of member states replied that there was no infringement at all. That the complaint was unfounded. They denied any evidence to the Commission services, they lied!… [and] in many cases, on the basis of the reply of the member states, the complaint was dismissed.” While there is nothing wrong with dialoguing concerning enforcement, a dialogue exclusively with member governments accused of breaking the law, reliant solely on information supplied by said governments, and producing political settlements concealed from public view seems far more conducive to forbearance than to the resolution of noncompliance.

Finally, von der Leyen’s letter appeals to transparency, claiming that enforcement “information is clearly set out in [its] annual reports.” We beg to differ: anyone wishing to discern trends in Commission enforcement from its annual reports will be left pulling their hair out. The Commission’s annual reports on enforcement fail to consistently report statistics regarding infringements trends over time using comparable tables, labels, and formatting. For instance, from its 2003 report until its 2010 report, infringement statistics were reported in a series of tables containing some longitudinal data, but these tables were dropped beginning in the 2011 report, and the most recent 2020 report did away with infringement statistics altogether, replacing them with pictures and narratives. While we could afford to hire research assistants to make sense of all of this, citizens and MEPs would likely be befuddled by the “clarity” of the Commission’s annual reports.

Back to Guard Duty

To conclude, we would like to clarify that our research focused on documenting and explaining a shift in the Commission’s enforcement strategy during the Barroso and Juncker Commissions. Our study should therefore not be construed as an analysis (let alone a critique) of the current Commission. Nevertheless, President von der Leyen’s unconvincing response to our study and to MEP in’t Veld’s query does raise concerns. We hope that going forward the Commission will address the implications of our study more directly.

Specifically, if the Commission is serious about demonstrating its renewed commitment as Guardian of the Treaties, it might consider ways to insulate its enforcement functions from its highly political role as a policy-maker – much as national public prosecutors are expected to be largely insulated  from political pressure from legislators and politicians in government. As we explained in an op-ed, promoting internal reforms designed to reinstate the autonomy of the Commission lawyers and civil servants who manage infringements could shelter law enforcement decisions from being driven by the political temptations of forbearance. In this light, the European Parliament has a role to play as well. MEPs would be well-advised to demand greater transparency and oversight concerning the Commission’s pre-infringement dialogues and infringement procedures alike, particularly with respect to the many cases that the Commission chooses to drop.

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Author: R. Daniel Kelemen & Tommaso Pavone

R. Daniel Kelemen is Professor of Political Science and Law at Rutgers University; Tommaso Pavone is Assistant Professor of Law and Politics at the School of Government and Public Policy at the University of Arizona.

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