Lobbying versus litigation: political and legal strategies of interest representation in the European Union

Abstract

Interest groups' many and varied attempts to influence EU public policy are well documented. Research on EU interest politics has made considerable progress in the analysis of both the access and voice strategies they use as they seek to influence the policy process. Other scholars have focused on the legal strategies that private actors deploy when they endeavour to shape public policy by bringing cases before the ECJ. Although both lobbying and litigation strategies have been well studied in the context of European integration and are, in principle, available to most business interest groups, few scholars have asked what determines actors' selection of one or the other in their pursuit of policy change. This paper attempts to bridge these two strands of research and theory by offering a framework in which private actors' choice between lobbying and litigation can be understood and hypotheses about their behaviour derived.

Keywords:

• Commission
• ECJ
• interest group
• litigation
• lobbying.

Acknowledgements

We are grateful to Jan Beyers, Andreas Broscheid, David Coen, Dirk De Bièvre, Eddy De Smijter, Bart Kerremans and Cornelia Woll for their useful comments on earlier versions of this paper. Furthermore, we would like to thank the participants of the ECPR Panel on ‘Access and Political Strategies in the European System of Interest Intermediation’, Johns Hopkins University, Bologna, June 2004, and the participants of the Workshop on 'Empirical Studies of Interest Representation in the European Union, University College London, January 2006, for their interesting remarks.

Notes

1 The views expressed in this article are purely those of the authors and do not reflect the analyses or policies of the institutions for which they work.

2 In recent public choice approaches to lobbying in the EU (Broscheid and Coen 2003; Crombez 2002) or to interest group politics in general (Potters and Van Winden 1990), information increasingly plays a central role in the analysis. Starting with the assumption that interest groups are better informed on issues that affect them than policy-makers, this literature argues that interest groups play a crucial role in the policy process by transmitting information to the relevant policy-makers.

3 Truman already made a distinction between technical knowledge and political knowledge (1951: 333–4).

4 For a detailed theoretical discussion and empirical analysis of the supply-and-demand scheme for information and the resulting access patterns of private interests to the EU institutions, see Bouwen (2002, 2004a).

5 In addition to the preliminary reference procedure in Article 234, EU institutions and member states may bring cases directly for a number of reasons under Articles 226–30. Private actors may, and do, lobby these bodies to bring such suits, but this paper will only consider litigation choices over which private parties have a direct influence: those instances in which they can bring suit, themselves. Individuals also have a growing, but still nascent, right to bring actions for annulment of EU legislation directly to the ECJ under Article 230. Because it is still very limited in its use, it is also not examined here.

6 i.e. To grant rights directly to private litigants.

7 Financial Services: Building a Framework for Action. Commission communication of 28/10/98, COM (1998) 625.

8 The association, SACEM did, however, engage in a fairly sophisticated litigation strategy, bringing cases ECJ 22/79, ECJ 402/85, ECJ 270/86, ECJ 110/88 with some success.

9 http://www.cbp.gov; data from the Customs Ruling Online Search System database http://rulings.customs.gov/.