The Evolving Role of the European Commission in the Enforcement of Community Law: From Negotiating Compliance to Prosecuting Member States?

After a brief overview of the Commission's traditional role in infringement procedures, this article examines the impact of the White Paper on the role of the European Commission in situations of both pre-litigation and post-litigation non-compliance.
Firstly, it is demonstrated that the implementation of the White Paper on European Governance has resulted in the limited introduction of selected elements of new governance, which all converge towards a substantial reinforcement of the role of the Commission as the negotiator of the Member States' compliance. Secondly, the analysis shows that the role of the Commission is increasingly inscribed in a litigation management and litigation avoidance framework. Thirdly, while it is acknowledged that the strengthening of the negotiator's role of the Commission within the new framework goes someway towards enhancing the overall effectiveness of infringement actions in cases of pre-litigation non-compliance, its contribution to improving the effectiveness of infringement actions in instances of post-litigation non-compliance is questioned. Finally, the suggestion is put forward that in the latter circumstances, the effectiveness of the enforcement of Community law would perhaps be better served by the Commission acting more as a prosecutor on behalf of the Community than as a negotiator.