Improving the efficiency of pretrial bargaining in disputes over noncompliance with international law: encouraging evidence from the European Union

Cheruvu, Sivaram; Fjelstul, Joshua C.

doi:10.1080/13501763.2021.1945130

Cited by 7 publications

(8 citation statements)

References 38 publications

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“…While the number of infringements dropped, the EU faced one crisis after another. Compliance literature, however, largely side-stepped the issue of crises and enforcement, and instead ascribed declining infringements to either structural or strategic causes (Börzel, 2021; Cheruvu and Fjelstul, 2022; Cheruvu, 2022; Closa, 2019; Fjelstul and Carrubba, 2018; Hofmann, 2018; Kelemen and Pavone, 2023).…”

Section: Background and Literature Reviewmentioning

confidence: 99%

“…Because the ECJ ruled that EU law takes primacy over national law (Falkner, 2018; Wilman, 2015), citizens, businesses, and groups can appeal for EU rights directly in national courts. Others suggest that enforcement shifted to other programs, like the EU Pilot system, a more informal channel (Cheruvu and Fjelstul, 2022; Smith, 2015). However, even the number of pilot cases has plummeted since the mid-2010s (Hofmann, 2018; Kelemen and Pavone, 2023).…”

Section: Background and Literature Reviewmentioning

confidence: 99%

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The EU Commission: Supplying enforcement and demanding compliance

Waters

2023

European Union Politics

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During the last 20 years, the European Union has been mired in crisis after crisis. At the same time, the number of infringement procedures, the formal requests from the European Commission to member states for compliance, decreased dramatically, despite the addition of 10 member states in 2004. Yet, the link between crises and Commission enforcement activity has not been systematically examined. In this article, I theorize about the role of time, and demonstrate that crises limit the Commission's ability to act as guardian of the treaties. However, crises are not deterministic in nature – the European Parliament and European Union citizens can alter the costs of Commission enforcement. I find that as Euroscepticism increases, the Commission's demand for compliance decreases, in part due to the steep reputational costs to the Commission when member states refuse compliance, especially after sanctions. The number of infringements is also positively correlated with European Parliament action, suggesting that even without formal sanctioning power, the European Parliament plays a role in European Union law enforcement.

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Section: Background and Literature Reviewmentioning

confidence: 99%

Section: Background and Literature Reviewmentioning

confidence: 99%

The EU Commission: Supplying enforcement and demanding compliance

Waters

2023

European Union Politics

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“…Private enforcement is a complementary tool, but it has limitations…it is necessary to strengthen central enforcement through the infringement procedure and grass-root private enforcement" (Monti 2010: 96). To be sure, the Commission did promote alternative dispute resolution mechanisms such as SOLVIT and EU Pilot post-2004, in like with "better governance" explanations for the decline in Commission enforcement (Cheruvu and Fjelstul 2021;Falkner 2018). Yet there are three reasons why this is an insufficient explanation for the decline in infringements.…”

Section: Quantitative Evidencementioning

confidence: 99%

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

Kelemen,

Pavone

2023

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Why would a supranational law enforcer suddenly refrain from wielding its powers? The authors theorize the supranational politics of forbearance—the deliberate underenforcement of the law—and explain how they arise from cross-pressures between prosecutorial discretion and intergovernmental policy-making. The article then traces why an exemplary supranational enforcer—the European Commission—became reluctant to launch infringements against European Union member states. While the Commission's policy-making role as engine of integration has been controversial, its prosecutorial role as guardian of the Treaties has been viewed as less contentious. Yet after 2004, infringements launched by the Commission plummeted. The authors demonstrate that the Commission's political leadership grew alarmed that aggressive enforcement was eroding intergovernmental support for its policy agenda. By reining in the bureaucrats managing enforcement and embracing conciliatory dialogues with governments, the Commission sacrificed its role as guardian of the Treaties to safeguard its role as engine of integration. The article's findings highlight the consequences of politicizing international institutions and the tradeoffs facing executives double-hatting as prosecutors and policymakers.

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“…To help alleviate the burden and to make the infringement procedure more efficient, the Commission has launched programs such as EU Pilot to some success, shortening the amount of time it takes for it to either end a proceeding at the LFN stage or decide to advance it to the RO stage (e.g. Cheruvu and Fjelstul, 2021). Moving an infringement proceeding forward to the RO stage, nonetheless, is a resource-intensive process requiring negotiations with a member state in an effort to reach a solution and avoid the time-consuming task of preparing legal arguments in front of the CJEU.…”

Section: Noncompliance and The Eu Infringement Proceduresmentioning

confidence: 99%

“…I also control for member states accession to EU Pilot ( pilot ) with a binary indicator for whether the Commission launched a case after the member state joined EU Pilot. As I previously mentioned, the Commission created EU Pilot to resolve noncompliance earlier in the infringement procedure (Cheruvu and Fjelstul, 2021). I further create a variable workload that is the number of open infringement proceedings the Commission has against the member state at the time it issues an LFN against the member state for the given observation in the dataset.…”

Section: Empirical Strategymentioning

confidence: 99%

When does the European Commission Pursue Noncompliance?

Cheruvu

2022

European Union Politics

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Under what conditions will international compliance-monitoring institutions pursue violations of international law? The European Commission’s infringement procedure is a multi-step process that culminates at the Court of Justice of the European Union when a member state has allegedly violated European Union law. The Commission, however, does not have meaningful enforcement powers, and may potentially spend valuable time and resources on a case only for a member state to not comply with European Union law. To manage this opportunity cost of pursuing other violations of European Union law, I argue that the Commission will strategically delay advancing a case through the infringement procedure when it anticipates that the political conditions will be more favorable for compliance in the future. I provide evidence that the Commission delays infringement proceedings when it expects the election of a new government that will be more likely to comply than the incumbent government.

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Improving the efficiency of pretrial bargaining in disputes over noncompliance with international law: encouraging evidence from the European Union

Cited by 7 publications

References 38 publications

The EU Commission: Supplying enforcement and demanding compliance

The EU Commission: Supplying enforcement and demanding compliance

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

When does the European Commission Pursue Noncompliance?

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