Only weak enforcement? Structural reasons for the EU’s disconnect – comparing the single market and the arrest warrant

Is a disconnect troubling the European Union (EU)? This paper argues that the EU faces this danger if there are contradictions between its promises and action. Such is the case when there is an implementation deficit of EU law at the national level. I argue that such coincidental cases of non-compliance are only part of the picture. Moreover, there are structural reasons as partly the necessary preconditions for the realization of EU rules are lacking. Because the EU has hardly any administrative capacity, it depends on member states (MS) for implementing its law. This system of cooperative federalism can only work if MS have the necessary administrative capacity and trust each other sufficiently to implement EU law not only for their own benefit, but also for the benefit of the whole Union. To ensure the match between EU law and its implementation, the EU polity foresees the Commission having the monopoly of initiative and acting as the guardian of the Treaty. When the COM drops out of infringements, this mechanism does not work as intended. Alternatively, beneficiaries of rules can litigate in national courts, leading potentially to a preliminary ruling. The paper differentiates a disconnect arising from weak judicial enforcement from one that roots in missing administrative capacity. The former situational disconnect can be fixed with better enforcement action, while the latter structural disconnect refers to EU law presuming institutional capacities that are not available. I build my argument of a structural disconnect on two case studies. Firstly, I focus on the free movement of goods as the cornerstone of the single market – which again is fundamental to European integration. I show that there are good reasons to believe that the single market has insufficient safeguards against dangerous products. My second example, the European Arrest Warrant (EAW), has such an institutional safeguard against a structural disconnect. For the EAW, there is a potential feedback loop between rulemaking and insufficient implementation. National courts can intervene in cases of systemic failure, and object to the surrender of persons if institutional preconditions in the other member state are deemed to be insufficient.