Between Conflict and Cooperation: Commission-Member State Interactions in the Enforcement of EU Migration and Asylum Law

How is the European Commission’s role as ‘guardian of the treaties’ shaped in a politicised Europe? In the EU, the Commission functions as both ‘engine of integration’, and ‘guardian of the treaties’. However, through responses to various crises and growing politicisation of the EU upping the pressure on the Commission, there is increasing tension between the roles. Concretely, some scholars argue that the engine has overpowered the guardian, with consequences for the equal application of EU law. This development manifests for example in the fact that in place of ‘traditional’ enforcement instruments such as the infringement procedure in which the Commission takes the role of prosecutor, the institution increasingly reaches for ‘soft’ informal enforcement instruments that rely on close cooperation with member states. How did this come to be? In this article, I argue that the Commission’s enforcement practice is not only the result of its internal policy, but is shaped by day-to-day formal and informal interactions with member states. Although they are in the literature often assumed to take the form of bargaining, these interactions at present far precede the formal infringement procedure, and may consist of informal arguing and exchanges of views, taking the form of conflict, cooperation, or something in between. Using a norm contestation and identity theoretical approach, this article aims to untangle how inter-level interactions between the Commission and member state governments shape the role of the Commission as ‘guardian of the treaties’. This will be done through the analysis of documents and interviews with participants in the enforcement process on the sides of both the Commission and member states. In doing so, I focus on three cases of suspected non-application of legislation in arguably the most politicised policy area in the EU: migration and asylum. This article contributes to our understanding of enforcement by zooming on in day-to-day contacts between Commission and member state officials, theorising and empirically assessing the contestation of not only substantive policy-based norms, but also larger questions surrounding the enforcement of EU law by the Commission more broadly. Additionally, through the execution of three case studies on suspected non-application of asylum legislation in different member states, this study contributes valuable empirical evidence of the on-the-ground impact of the changing enforcement role of the Commission in migration and asylum policy.