Forbearance and the EU Rule of Law Crisis: The Curious Case of the European Commission

• In Event: New Insights into EU Institutions

Abstract

In the EU, the European Commission is responsible for acting as “Guardian of the Treaties” by enforcing EU law against noncompliant member states. For years, the Commission embraced its law enforcement role, launching a rising number of infringements proceedings against member states. Yet as the recent autocratization of some EU states unleashed a veritable “rule of law crisis” in the EU, the Commission has been uncharacteristically reluctant to wield its enforcement powers. What explains the Commission’s unwillingness to enforce the law despite an existential threat to Europe’s legal order? Drawing on infringement statistics and interviews with EU officials, we argue that the Commission’s puzzling behavior is an unintended consequence of a shift in law enforcement policy that preceded the rule of law crisis. Faced with a decline in intergovernmental support, in the mid-2000s the Commission’s political leadership sought to rekindle its relationship with member states by implementing a policy of “forbearance:” The politicization and intentional under-enforcement of the law. While forbearance presumed that member states would remain broadly committed to EU law, this presumption was flipped on its head when the Hungarian and Polish governments began to systematically resist their EU legal obligations a few years later. Yet because the reforms implementing forbearance had by then become deeply entrenched, the Commission remained reluctant to abandon conciliatory political dialogue for vigorous enforcement. We conclude that the Commission’s failure to defend the rule of law in Europe exemplifies the perils of politicizing law enforcement.

Authors

• Tommaso Pavone, University of Arizona

• R. Daniel Kelemen, Rutgers University, New Brunswick