The European Commission’s Strategic Enforcement of the EU Law: Toleration of Noncompliance Against Political Risks

As “the guardian of Treaties”, the European Commission has the legal obligation to monitor the implementation of EU law by Member States. But this does not necessarily mean that the Commission would enforce the EU law or pursue noncompliance in a neutral and systematic way. On the contrary, it is well noted in the literature that the European Commission has initiated the infringement procedure selectively and strategically. For example, some research has already shown the Commission would only pursue infringements cases with higher chances to win at the Court or the ones bringing about the most complying benefits (or the least enforcing cost). Different from the existing literature which assumes the Commission as a self-interest maximizer, this article argues that the Commission also has an eye on the stability of the EU’s political system as a whole. Toleration of noncompliance, as another essential aspect of the Commission’s strategic enforcement, helps to cushion the political risks deriving from either the European level or Member States’ domestic politics. To illustrate the abovementioned mechanism, this article conducts a detailed case study on the infringement case against Slovakia on parallel trade in medicines. Since 2015, Slovakia has erected restricting measures against the export of pharmaceutical products in order to relieve the supply shortage in their domestic markets. Afterwards the Commission launched an infringement case against Slovakia on the ground that its measures amounted to quantitative restrictions of free movement of goods. After years of exchanges, however, the Commission closed this case in 2018, while at the same time, all national measures remained intact. With the help of original infringement documents and interviews with the Commission officials, the author finds that the Commission’s decision to determinate this case is a balancing act between legal reasoning and political reality. Given the expanding interpretations of free movement of goods in the previous case law by European Court of Justice, rigorous enforcement of the EU treaty would be highly likely to outlaw these national measures and thus compromise citizens’ health interests. To ease this evident tension between the legal reasoning of market freedom and pressing demands for trade restriction, the Commission chose to tolerate Member States’ noncompliance and resorted to political ways to resolve this issue. Through this case study, it is clear that toleration of noncompliance could be utilized by the Commission to confine the encroaching effect of judicial law-making of ECJ and to grant more political flexibility to the Member States who are facing mounting domestic pressure. In this way, toleration of noncompliance plays a role of a safety valve, which could reduce the tension of the political system, especially during the era of a high level of politicization.