Strategic Litigation: An Open Avenue for Interest Groups towards Rights Expansion in the European Union Angelina Atanasova, PhD student Center for Legal Theory and Empirical Jurisprudence, Faculty of Law, KU Leuven

Part I - Theoretical Background The European citizens: guardians of EU Law “…individuals in real cases and controversies (usually against state public authorities) became the principal “guardians” of the legal integrity of Community law within Europe similar to the way that individuals in the United States have been the principal actors in ensuring the vindication of the Bill of Rights and other federal law” Weiler, Transformation of Europe,1991:2414

Positive vs. Negative Arguments involve marginalized or excluded groups in the policy process; transparency and accountability; timely advancement of rights in line with societal shifts (culture- centered explanation– Epp); establish enforceable individual and group rights; better accountability of the EU – tangible effects of the Community law. increase legal expenses; slow down regulatory processes; increase adversarial relations between stakeholders in the policy process; forms of judicial activism that ultimately erode democracy - judiciary as a single player vs. broader consensus and public debate with multiple veto players. “Spread of an American disease” Kelemen, 2011

Prerequisites for Litigation: EU Law Importance of the CJEU doctrines: o Direct effect of EU law – Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62; o Supremacy of EU law - Flaminio Costa v ENEL (1964) Case 6/64; The reference procedure for a preliminary ruling (Art. 267 TFEU)– open gate to the CJEU; Willingness of national courts to cooperate with the CJEU.

The Role of the CJEU in the Policymaking Process at EU level The CJEU decisions have impacted “the EU’s organs of government, the “constitutional” boundaries between international, supranational, and national authority”, as well as the policy outcomes in different domains (Stone Sweet, 2010); The “dynamic court view on EU integration” - Martinsen (2015), Kelemen (2011), Cichowski (2007) - “judicialization of politics has taken place”.

The Opposing View: the CJEU Is Not “the Master” The ECJ must make “political calculations to preserve its future credibility” (Carrubba and Gabel, 2005); Rosenberg; The institutional externalist model (Dyevre, 2010) – “judicial bodies do not operate in a vacuum” - strategic game among the Commission, the Parliament, the CJEU, and the member states’ positions.

Reference for a Preliminary Ruling references references 404 references Van Gend en Loos 1964 Costa v ENEL 1976 Defrenne v Sabena (No 2) 2011 Test- Achats Data Source: Court of Justice of the European Union, Annual report, 2012

The EU Litigation Experience: CJEU Decisions Defrenne decisions (ECJ 1971, 1976 and 1978): o Result: Transformed Article 141 TEC into a “positive right enforceable in national courts”; establishment of horizontal direct effect of a Treaty article. Test-Achats ASBL v Conseil des ministers (Case C- 236/09): o Result: New impetus for the application of the EU Charter of Fundamental Rights; Article 5(2) of Directive 2004/113 is cancelled by the CJEU decision as incompatible with the purpose of Directive 2004/113 and Article 21 and Article 23 of the Charter.

Organized Interest Groups in the Context of Supranational Governance “[e]ven liberal judges … cannot make rights supportive law unless they have rights cases to decide” Epp, 1998 The importance of support structure:  institutional support;  free legal aid;  legal expertise in the specific field;  organisational resources at national/supranational level.

Example: the NGO Perspective Strategic litigation of race discrimination in Europe: from principles to practice, A manual on the theory and practice of strategic litigation with particular reference to the EC Race Directive by ERRC, Interights, MPG 2004

Europeanization: More Open Doors Additional institutional level; Lack of clear legislation on lobbyism; Institutionalization in different policy areas; o Ex. the Single European Act – further political and economic integration of the EU, new social issues come onto the European policy agenda (relocation of social benefits and pensions, taxation, maternity leave standards); Legislative framework of a policy field; Vague wording – room for interpretation.

Conclusions The CJEU has the judicial power to influence policies at EU level with direct impact at national level; The CJEU can “expand EU competence while diminishing member state control over EU policy outcomes” (Cichowski, 2007); Litigation can “include” marginalized or previously excluded groups of society in the policy process; Litigation at EU level – one legal action – enforcement in all EU Member States; Reverse of a CJEU decision compared to national level courts’ decisions.

Part II - PhD Research The Big question: “When litigation strategies are successful and the reasons why” (Vanhala, 2006); Choice of a policy field: Disability policy field; Why? o adoption of new legislation in the field - ratification of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in 2010 by the EU; adoption of the EU Charter of Fundamental Rights in 2009; o a weak example of carrying out a rights-based approach at EU level (Kelemen, 2011); Practical objective: to explore possible open litigation avenues for NGO groups.

What Factors Determine the Success of Rights Litigation in the Area of Disability? Factors H1: Adoption of new legislation in the disability domain at EU level, the number and the outcome of the decisions issued by the ECJ, as well as the support structure (funding, legal expertise, institutional support) of interest groups predetermine an increase in successful litigation strategies, brought by individuals/interest groups. Process H2: The propensity of a national judiciary system to cooperate with the ECJ predetermines the success of litigation strategies brought by individuals/interest groups in the disability field.

Disability: CJEU Landmark Cases Coleman v. Attridge (Case C-303/06) o Result: expanded the scope of disability rights and the impact of secondary EU legislation; whole group - caretakers and people “associated with disability” - have been given the opportunity to protect their rights before national courts under EU anti-discrimination legislation. HK Danmark (joined Cases C ‑ 335/11 and C ‑ 337/11) o Result: adoption of the social model of disability definition in light of Article 1 UNCRPD; primacy of international agreements.

Independent Variables “A point of European law on which domestic actors can draw” - access point (Alter and Vargas, 2000; Cichowski, 2007); “Favourable ECJ interpretation of this law” (path dependency and interest groups motivation); Support structure in terms of free legal aid, institutional support or legal advice and specific expertise, provided to litigants (Epp,1998; Cichowski, 2007); Application of the preliminary ruling procedure (as a measure for the propensity of national courts to cooperate with the ECJ).

Dependent Variable Successful litigation strategy o litigation strategy: “the process of legal mobilization – the process by which individuals make claims about their legal rights and pursue lawsuits to defend or develop those rights” (Epp, 1998:18); o success of rights litigation: litigation which final outcome is ongoing or potential expansion of rights, resulted from an ECJ decision. The Coleman v. Attridge (Case C- 303/06), brought by the UK, illustrates such an example.

Methods to Test the Research Hypotheses Analysis of CJEU case law in the disability domain between 1996 and year, country of the litigants, parties of the litigation process, EU legislation and principles invoked, and result of the case; reference points - the adoption of the Employment Equality Directive 2000/78, the EU Charter of Fundamental Rights and the UNCRPD; o Aim: to explore institutionalization of disability rights through the developments of CJEU case law and EU legislation;

Methods to Test the Research Hypotheses Process tracing – mapping EU Member States and Commission positions in written observations in preliminary rulings; o Aim: to explore the roles and positions of different agents in institutionalization of disability rights at EU level; Elite interviews with selected policy makers; o Aim: to explore latent key factors in the policy making process; Semi-structured interviews with representatives of the disability community and data on funding and main characteristics of disability interest groups at EU and national levels; o Aim: to explore key factors influencing interest groups decisions whether or not pursue litigation; the existent support structure for disability NGOs.

Questions Are the claims of groups conducting strategic litigation legitimate for the whole society? Do they need to be? Why the number of strategic litigation cases brought across different policy fields differ immensely? Other ….

Thank you for your attention!