DEFYING THE COMMISSION: CREATIVE COMPLIANCE AND RESPECT FOR THE RULE OF LAW IN THE EU

AuthorAGNES BATORY
Date01 September 2016
DOIhttp://doi.org/10.1111/padm.12254
Published date01 September 2016
doi: 10.1111/padm.12254
DEFYING THE COMMISSION: CREATIVE COMPLIANCE
AND RESPECT FOR THE RULE OF LAW IN THE EU
AGNES BATORY
This article investigates how and to what extent member states comply with EU obligations in terms
of process and outcome. The aim is to demonstrate how norm-conform behaviour unfolds, or fails
to unfold, in an interaction between a member state and the European Commission. The empir-
ical focus is on recent rule of law crises in France, Hungary and Romania. The argument is that
member states engage in symbolic and/or creative compliance, designed to create the appearance
of norm-conform behaviour without giving up their original objectives. The cases illustrate that cre-
ative and symbolic compliance strategies may be successfully employed by member states because
they enable the Commission to disengage from conicts it judges too costly and yet maintain its cred-
ibility,and are conditioned by the visibility of failure to change facts on the ground. The implication
is that, at times, not only is compliance symbolic, but also to some extent is enforcement.
INTRODUCTION
Compliance with EU norms is a hot topic in both academic and policy circles. Do mem-
ber states generally implement and uphold the laws and values of the Union, or does the
EU face a compliance problem? Opinion is divided on the matter. Some scholars clearly
see the EU as a ‘success story in terms of compliance’ (Zürn 2005, p. 38), and argue that
its compliance record is ‘extraordinary’ by standards of international law and ‘appropri-
ately comparable’ to national legal systems (Conant 2012, p. 1). Others believe that not
only does the EU face a compliance problem, but violations of EU norms are increasing
in frequency, levels, and visibility, to the extent that the EU might be nearing a tipping
point of losing credibility (Falkner 2013, p. 14). Yet others point out that the answer to this
question is simply not known, since particularly on the application of EU law researchers
lack appropriate data (e.g. Börzel 2001; Treib 2014, p. 15).
Although this article clearly cannot – nor does it seek to – settle this dispute, it con-
tributes to the discussion by suggesting that in order to get a fuller picture of the obser-
vance of EU obligations we need a more nuanced understanding of what compliance
might mean in practice. Thus, the principal question investigated below is not why mem-
ber states (do not) comply,which has been extensively studied in the literature, but rather
how and to what extent compliance takes place in one particular area of interventions.
Moving beyond a static dichotomy of compliance/non-compliance, the aim is to demon-
strate how norm-conform behaviour unfolds, or fails to unfold, in an interaction between a
member state and the European Commission, the EU institution chiey tasked with ensur-
ing the observance of obligations as guardian of the Treaties. To the extent that member
states fail to comply, how do they defy the Commission and get away with it? Rather
than correct transposition, the benchmark is actual goal achievement, i.e. change on the
ground prompted by Commission action, which is a better indicator of the ‘effectiveness
of EU law’ (Snyder 1993, p. 19).
The empirical focus of the article is the Commission’s responses to (alleged) violations
of the rule of law in the member states: the French government’s expulsions of Roma
migrants in summer 2010; Hungary’s constitutional crisis reaching its height in 2012–13;
Agnes Batory is at the School of Public Policy,Central European University, Hungary.
Public Administration Vol.94, No. 3, 2016 (685–699)
© 2016 The Authors. Public Administration published by John Wiley& Sons Ltd.
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits use and
distribution in any medium, provided the original work is properly cited, the use is non-commercialand no modications or adaptations are made.

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