Taking the EU to Court by Christian Adam & Michael W. Bauer & Miriam Hartlapp & Emmanuelle Mathieu

Author:Christian Adam & Michael W. Bauer & Miriam Hartlapp & Emmanuelle Mathieu
Language: eng
Format: epub
ISBN: 9783030216290
Publisher: Springer International Publishing

Conclusion

Annulment litigation is about politics. Annulment actions are likely to be used when political considerations blend in. Understanding the use of judicial review thus requires going beyond a purely legalistic view of judicial conflicts, particularly since litigation is costly. Actors thus litigate only after some calculation about the potential costs and benefits; this calculation is done on various levels and with complex aims of the litigating actors. Formally winning a case is sometimes only one objective among others, and occasionally, it is not at all the major driver for litigation .

This is not to say that legal factors are irrelevant. They do play a role in actors’ decision to engage in litigation rather than trying to exert influence in the political arena. In addition, they structure choices between different legal channels. Legal options provide the opportunity structure in which actors’ concrete political calculations take place. However, in contrast to the literature on the economics of litigation (Gould 1973; Posner 1973), which emphasizes the probability of winning as the essential element in litigants’ risk-benefit analysis about their decision to litigate, the expectation to win is often only secondary in annulment cases—at least for public actors . The more annulment litigation is pursued for symbolic reasons—that is, as a signal to domestic constituents—the less important success in court becomes to litigants (Adam et al. 2015). Not to be misunderstood; annulment litigants do genuinely seek judicial success. But in terms of the legal merits of the case, the minimum requirements for justifying litigation are rather low. The important analytical consequence of this being so is that the explanatory power of legal factors on public actors ’ decision to litigate is limited.

Based on a new conceptualization of actor motivations , this chapter has identified four possible types of motivations that lay behind engaging in annulment litigation . Litigation can be chosen (1) in order to maximize material gains (or minimize financial costs), (2) to preserve political decision rights and to ring-fence the opponent’s decision-making competences, (3) to promote ideological and policy preferences , and (4) to signal trustworthiness to addressees of a policy. Not all of these motivations appeared equally frequent. Ideology , for example, found fewer echoes in our cases. Yet all motivations clearly constitute particular types that provide distinct analytical levers to understand annulment actions in the EU multilevel system . What is more, we saw that specific groups of actors are more likely to litigate based on one particular motivation : financial gains are frequently important for private and subnational governments . Signalling trustworthiness and responsiveness, in turn, are objectives of actors that face electoral competition at the subnational, national, or supranational level. Moreover, the motivation to keep or expand institutional competences matters most for public actors that want to protect their role in public decision taking. Finally, ideology matters most for strongly politicized actors, such as social movements (private litigants ) or public actors for which demonstrating that they hold a certain position according to party politics is important in preventing loss of legitimacy for their representational role.

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