Litigation Strategies and the Political Framing of EU Law

While legal scholarship has consistently lamented the lack of recognition of intersectional discrimination in courts, the question of whether intersectionality features in lawyers' litigation strategies remains in a blind spot. Although a growing body of interdisciplinary scholarship probes how legal mobilisation shapes the construction of EU law, the role of critical theory in EU legal entrepreneurship has attracted relatively little attention. This article thus displaces the focus from the judicial reception to the litigation of intersectionality. Through a series of interviews and doctrinal analysis, it examines the mobilisation of critical epistemologies in the framing and litigation strategies of norm entrepreneurs in the field of EU equality law. It explores how intersectionality is seized by legal practitioners, transformed as it enters the repertoire of law and rights, and incorporated in litigation strategies to contest, transform and construct non‐discrimination law before the Court of Justice of the EU.

In important recent cases dealing with labour law issues, the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) relied on a combination of international, European and domestic sources to justify their decisions. In Viking and Laval, the ECJ recognised that the right to take collective action as a fundamental right protected by EU law. In Demir and Baykara v Turkey, the ECtHR decided, for the first time, that the right to bargain collectively is an essential elements the right to form and to join trade unions covered by Article 11 of the European Convention for the protection of Human Rights. This chapter considers the reliance on multiple sources of law in this series of cases and questions the ‘combination method’ used by European courts to identify or interpret human right provisions. It argues that globalisation of legal sources in the area of labour law does not necessarily lead to ‘globalisation’ of labour law, allowing common solutions or, at least, harmonised solutions to come to life. The outcome of normative interaction is not universal labour law but instead largely depends on which court decides the case. Therefore, litigation strategies in the field of labour law should make use of the potential of normative interactions without ignoring the opportunities offered by the diversity of courts.

Conant's analysis of the air transport sector suggests how and why the European Court of Justice (ECJ) litigation strategy is not always successful for the individual claimant. In particular, the analysis demonstrates that despite the critical role of ECJ air transport litigation brought by individuals throughout the 1970s and 1980s, it was only the legal challenges of EU organizations and major airline carriers, and political mobilization of national executives that ultimately led to liberalization. The first section of the chapter briefly describes the traditionally protected air transport regime in Europe and then identifies legal challenges to restrictions that surfaced during the 1970s and 1980s, traces the evolution of interests in the air transport sector in the 1980s and 1990s, and demonstrates that a shift in political interests was a key component of legal and political pressure for liberalization and institutionalization of the air transport regime at the EU level. The second section assesses the extent to which the air transport market has liberalized and realized the potential benefits of competition, and the third concludes with an evaluation of the relationship between individual action, institutions, and organizations in this sector and other areas of EU law.

Examines the impact of EU institutional structure on individual rights litigation. Kelemen argues that EU institutions have encouraged a particular type of law and regulation, ‘adversarial legalism’, a factor that has led to an increased amount of litigation by both public authorities and private parties. The analysis illustrates how the creation of EU rights empowers societal actors in the enforcement of EU law and encourages strict centralization of enforcement by the European Commission. Kelemen explores various public‐interest legal domains to illustrate how this enforcement mechanism has shifted the balance of power away from member state governments. The five sections of the chapter are: Introduction; The Institutional Foundations of the EU Rights Revolution—an examination of how the basic institutional structure of the EU is conducive to the proliferation of rights and an adversarial litigious approach to enforcement; The Legal Foundations of the EU Rights Revolution—a review of recent developments in EU law that have expanded the legal basis for EU rights litigation; The Societal Foundations of the EU Rights Revolution—an investigation of the variety of social and institutional arrangements at the national level that are likely to influence patterns of rights litigation; and Conclusion—a presentation of findings from a survey of EU interest associations concerning their use of litigation strategies.

This paper examines the current challenges in copyright enforcement online in a case from Germany, concerning the Project Gutenberg Literary Archive Foundation. Project Gutenberg was found liable for a breach of German copyright law and access to certain items was blocked by Germany. Gutenberg believes that the German court has no jurisdiction over the matter, but will comply until the issue is resolved on appeal. The paper illustrates possible alternatives for jurisdiction and applicable law in the EU. Current choice-of-court and choice-of-law rules are argued to be unsuitable for copyright claims for the online environment. Further, the paper focuses on the latest case law of the Court of Justice of the European Union (CJEU) concerning the liability of intermediaries and the safe harbour regime. “Hosting” safe harbour is supposed to be rejected when a platform is directly liable for copyright infringement jointly with its users. Furthermore, the paper will describe how the same conclusions would also apply to the Google Books Library Project. Both cases illustrate the current problems of territorial copyright laws in the online environment. The challenges in enforcing copyright online encourage copyright holders to seek protection within just one jurisdiction so that one single law can be applied. This weighs heavily when deciding upon a litigation strategy for copyright claims. The lessons learnt in this field show how cross-border enforcement of copyright online is tremendously unpredictable for defendants and unaffordable for copyright holders, and thus, benefits nobody.

Under what conditions do domestic actors use international legal mechanisms to influence domestic policy? Drawing on the European case, where legalization has progressed the furthest, I develop a generalizable framework for explaining variation in the use of the European Union's legal system by domestic actors to influence national policy. Four steps are involved in using the European legal process to pressure for policy change: (1) there must be a point of European law that creates legal standing and promotes the litigant's objectives; (2) litigants must embrace this law, adopting a litigation strategy; (3) a national court must refer the case to the European Court of Justice or apply ECJ jurisprudence; and (4) domestic actors must follow through on the legal victory to pressure national governments. Different factors influence each step, creating cross-national and cross-issue variation in the influence of EU law on national policy. Raising a significant challenge to neofunctionalist theory, I argue that negative interactive effects across the four steps and backlash created by the success of integration can stop or even reverse the expansionary dynamic of the legal process. I conclude by exploring the generalizability of this framework to other international contexts.

The EU is arguably one of the major players in the field of international biodiversity governance and has ratified most of the prominent treaties in the field of nature conservation. During the past decades, the EU has, moreover, adopted a set of progressive directives and regulations, which aim for the recovery of the EU’s most threatened habitats and species and, indirectly, implement its biodiversity-related pledges. This chapters addresses the litigation strategies aimed at ensuring a better compliance with international biodiversity law (IBL). The picture that emerges is distinct: on the one hand, the supranational character of the EU legal order guarantees a more effective application of IBL whereas, on the other hand, it limits the added value of IBL. Only in a limited numbers of cases, has the Court of Justice of the EU (CJEU) referred to IBL. At the same time, however, the past decades have seen an increased rise in the legal protection that is provided for in nature protection cases, especially before the national courts. A plethora of decisions of the CJEU underlines the sharp teeth of many of the protection regimes that apply in EU law to endangered species and habitats, also in the context of economically important sectors, such as port expansion, intensive agriculture practices, and industrial facilities. The limited access for NGOs in direct annulment proceedings before the CJEU, however, underlines the lack of effective protection against unsustainable decisions for biodiversity adopted at the EU level. In future years, one can expect a rise of strategic biodiversity-based lawsuits, that focus on more systemic challenges to biodiversity, such as climate change, nitrogen pollution, and habitat fragmentation.

Despite the importance of the role of the European Court of Justice (ECJ) in European integration, its decision-making process is little studied. In particular, the interactions between the political and the legal arena deserve greater attention. Member States’ governments and the ECJ are usually presented as two separate and competing entities, whilst in fact there is a great deal of interaction between these two institutional actors. This article, based on extensive comparative empirical research, uses US sociolegal scholarship on litigation to analyse governments’ litigation in a way which contributes to current theoretical understandings of judicial decision-making, European integration and Europeanisation. It identifies, describes, compares and analyses governments’ EU litigation strategies, in order to assess whether and how governments influence European legal developments through litigation. It also stresses the need for governments of the new Member States and candidate countries to understand the importance of adopting a strong and consistent EU litigation strategy, so as to play their part in the development of EU law.