Where Have the Guardians Gone? Law Enforcement and the Politics of Supranational Forbearance in the European Union

Abstract

Why would a supranational law enforcer suddenly refrain from wielding its powers? We theorize the supranational politics of forbearance – the deliberate under-enforcement of the law – and distinguish them from domestic forbearance. We explain why an exemplary supranational enforcer – the European Commission – became reluctant to launch infringements against European Union member states. While the Commission’s legislative role as “engine of integration” has been controversial, its enforcement role as “guardian of the Treaties” has been viewed as less contentious. Yet after 2004, infringements launched by the Commission plummeted. Triangulating between infringement statistics and elite interviews, we trace how the Commission grew alarmed that aggressive enforcement was jeopardizing intergovernmental support for its policy proposals. By embracing dialogue with governments over robust enforcement, the Commission sacrificed its role as guardian of the Treaties to safeguard its role as engine of integration. Our analysis holds broader implications for the study of forbearance in international organizations.

Keywords: European Union, compliance, institutional change, governance, law enforcement, forbearance