Infringement Actions and Social Change: The Distributional Impact of the Commission’s Litigation Powers

The European Commission has a central role as “guardian of the Treaties” thanks to the infringement procedure, by which it can bring legal actions against Member States that do not comply with EU law. While the Commission’s discretion in launching infringement proceedings has long been recognised, not much attention has been given to the wider structural effects of the Commission’s infringement powers. Using direct taxation as a case study, this article maintains that infringement actions are based on value choices on the matters and actors that should be privileged when ensuring compliance with the EU legal order, and that these choices can have distributional policy consequences. As a result, more transparency may be needed for the public to understand the reasons behind the Commission’s litigation priorities. In the same vein, such priorities may have to be reconsidered for the EU legal order to benefit all its subjects equally.