Bargain down the Law - The Commission's method to ensure compliance with EC-law as bargaining or judicial procedure

The Commission initiated, in 2002 alone, over 2300 cases of alleged infringements of EC law under the general mechanism for supranational monitoring provided for in article 226 of the EC Treaty. Most cases were terminated before the formal infringement procedure started whereas some were taken all the way to the Court of Justice for a judicial solution. One of the few theoretical accounts of the infringement procedure is based on this mix of political and judicial solutions and claims that the procedure can be described as ?compliance bargaining? between the Commission and the Members of the EU. This approach developed through an assessment of the procedure in general. In this study it shall be tested on particular cases and challenged by a competing approach emphasising the judicial aspects of the procedure. In all three cases studied, support for the Compliance bargaining approach is found. However, the approach's ability to explain the procedure and its outcome differs between the cases and in some instances the approach has problems explaining the Commission's behaviour. The study indicates that this is a result of a limitation in the Commission's ability to bargain when procedures take place against more than one Member State. Furthermore, the bilateral focus of the approach is claimed to be limiting in its explanatory power by excluding the domestic arena. Therefore, it is argued that two-level game theory can contribute to a theoretical development of the approach