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

Why would a supranational law enforcer suddenly refrain from wielding their powers? We theorize the supranational politics of “forbearance” – the deliberate under-enforcement of the law – and how they differ from domestic contexts. Specifically, we tackle the puzzle of why an exemplary supranational enforcer – the European Commission – became reluctant to launch infringements against European Union (EU) member states. In the EU, the Commission serves as the “guardian of the Treaties” that enforces EU law and the “engine of integration” that proposes legislation. While the Commission’s legislative role has been plagued by controversy, its enforcement role has been viewed as more resilient: Through the early 2000s, the Commission opened a growing number of infringements. Yet after 2004, infringements plummeted dramatically – Why? Through an intensive case study incorporating infringement statistics and interviews with EU officials, we trace how the Commission grew alarmed that law enforcement was irritating member states and jeopardizing its precarious capacity to broker intergovernmental consensus for its policy proposals. By embracing conciliatory political dialogue over adversarial law enforcement, the Commission sacrificed its legal role as guardian of the Treaties to safeguard its political role as engine of integration. We conclude by specifying the broader implications for the study of forbearance.