Who Does and Who Does Not Engage in Strategic Litigation in European Law?

Both European Union law and the European Convention on Human Rights offer an opportunity structure for a broad array of interests to pursue their objectives through strategic litigation. The spectrum of rights that litigants can claim is sufficiently broad that no consensus has emerged on the general consequences of such litigation. While much research has emphasized European law as a resource for civil society groups, EU law in particular has also been identified as a boon for businesses who challenge cornerstones of coordinated capitalism. This paper sets out to provide a better empirical basis for a normative evaluation of the consequences of strategic litigation in European law by asking who engages in it and who does not. It draws on data from a large-scale survey among interest groups in eight European countries. While results show significant differences in country-level litigation rates, the focus of this analysis is on the impact of group characteristics on the choice of litigation as a strategy. The findings confirm that litigation requires specific resources but highlight that groups with a prior interest in European affairs and those with antagonistic relations to national authorities are the most likely to turn to strategic litigation based in European law.