The Commission v the Member States: who wins in court, and why?

Författare: Johansson Markus, Larsson Olof

Infringement cases at the Court of Justice of the EU are thought to be simple affairs; easy for the European Commission to win. In this European Policy Analysis Markus Johansson and Olof Larsson of the University of Gothenburg show that things are not quite so straightforward: member states are defending – and winning – such cases more often than was previously thought. (2022:18epa)

Correct transposition and robust enforcement of EU law is vitally important if the EU is to maintain the confidence of citizens and businesses. Member state governments must introduce legislation that correctly implements EU directives, parliaments have to repeal laws which conflict with EU regulations and treaties that are directly applicable. Furthermore, government agencies, local and regional administrations and the judiciary must ensure that EU law is observed in the exercise of public authority: there are many places and ways in which compliance can go awry.

The European Commission – ‘the guardian of the treaties’ – is responsible for ensuring such compliance. If the Commission considers that a member state’s measures are not sufficient to ensure legal uniformity they may launch infringement proceedings which can lead, in extremis, to an infringement case at the Court of Justice of the EU (CJEU).

Existing research often takes the number of infringement cases as a proxy measure for how successfully (or otherwise) a member state implements EU law, and how dutifully it is observed. Markus Johansson, Researcher in political science at Gothenburg University and at SIEPS, and Olof Larsson, Researcher in political science at Gothenburg University, test this correlation by immersing themselves in the cases. Among other questions, they ask how often, and on what grounds, do member states contest infringement cases? And what are the factors which affect the outcome? 

The analysis shows that member states are more likely to contest cases that concern the treaties, and those in which the Advocate General has given an opinion. They are least likely to contest cases concerning the failure to transpose an EU law within the time limit for doing so. The authors also find that different member states, to various degrees, are subject to cases that display these various characteristics. They conclude that the higher the degree of contestation, the lower the success rate of the Commission, and they suggest that this is because these cases involve a higher degree of legal uncertainty and therefore allow greater scope for mounting a successful defence.

Contrary to the common understanding in many studies of non-compliance in the EU, this analysis reveals that compliance cases are not simple affairs that the Commission easily wins. The analysis calls on scholars and others not to underestimate the legal complexity and uncertainty in the outcome of these cases.