An impartial guardian or a political entrepreneur? An analytical framework of the European Commission’s toleration of noncompliance

When performing its mandate as the ‘guardian of the Treaties’, European Commission (the Commission) has been praised by most scholars and practitioners as a competent and impartial law enforcer. However, a burgeoning group of literature has revealed a less-discussed facet of the Commission’s judicial role——‘enforcement forbearance’ or ‘toleration of noncompliance (ToN)’. On top of the conventional lens of a political entrepreneur, which assumes the enforcement actions of the Commission are driven by the self-interests of the Commission, this article proposes that enforcement forbearance of the Commission is also driven by the need of maintaining the stability of the EU legal order. In other words, the Commission is equally a legal guardian. Specifically, the juxtaposition of the proposed two theoretical lenses leads to a more nuanced typology of ToN by the Commission. Egocentric ToN indicates that the Commission utilizes targeted enforcement leniency to advance its legislative agenda. Altruistic ToN manifests that enforcement leniency is used by the Commission as a ‘painkiller’ to cope with non-compliance caused by loopholes of the EU legal order. By bringing together both lens, active ToN demonstrates that enforcement leniency not only temporarily patches up the loophole of the EU legal order but also generates a window of opportunity for the Commission to overhaul the malfunctioned legal order by way of deepening integration. Lastly, passive ToN, as a residual type, refers to the situation where the Commission must loosen its enforcement grip to cope with the domestic crises of member states. This paper further traces four infringement proceedings during Barroso II and Juncker Commission to demonstrate how the proposed typology of ToN plays them out. It enriches our understanding of the Commission’s role as the ‘guardian of treaties’ and also contributes to the scholarly debate over the complex relationship between law and politics in the EU.