Negative Integration, Market Making, and the EU’s Infringement Procedure

Negative integration—the removal of national barriers that obstruct free movement between member states in areas such as trade, competition, and market access—has been a cornerstone of European integration since the creation of the European Economic Community. Unlike positive integration, which involves creating new common rules or standards, negative integration focuses on dismantling existing restrictions. Most contemporary instances of negative integration emanate directly from the EU treaties, which impose negative obligations on member states to cease or modify state action that conflicts with the principles of the internal market. In this paper, we analyse how these treaty-based obligations manifest in the EU’s infringement procedure, the legal process by which the European Commission oversees member state compliance with EU law. While much of the existing literature on the infringement procedure has centred on positive obligations—particularly those arising from directives—negative integration cases constitute a significant and underexplored share of the cases brought all the way to the Court of Justice of the European Union. Our analysis demonstrates that approximately 20 percent of all infringement cases reaching the Court concern negative integration, highlighting its continued relevance to the integration process. Drawing on theories of Political Economy, we test propositions regarding the patterns of non-compliance with treaty-based obligations. We show that infringement cases concerning negative integration disproportionately target Coordinated or Social Market Economies, such as Germany, Austria, and France, whose economies rely more heavily on state intervention and regulatory frameworks. This stands in contrast to more liberal market economies, which are less frequently subject to such cases. We further demonstrate that negative integration cases possess a series of distinct characteristics compared to other infringement cases. Firstly, they contain more Legal Uncertainty, as they involve greater ambiguity in legal interpretation and application. Secondly, member states are more likely to contest negative integration cases, signalling both the political sensitivity of these cases and their perceived implications for national economic models. Thirdly, negative integration cases exhibit greater uncertainty in their outcomes, with member states achieving favourable rulings more often compared to cases concerning positive obligations. Building on Schmidt’s (2008) insights regarding negative integration and legal uncertainty, this paper situates the infringement procedure as a key arena in which conflicts over market-making and national economic sovereignty are played out. Thereby, it offers insights into the conflicts around negative integration in European politics, and the Court and the Commission’s roles in these conflicts. Moreover, it offers a series of key takeaways to research on both negative integration and compliance in European legal integration.