Why some EU institutions litigate more often than others: exploring opportunity structures and actor motivation in horizontal annulment actions

ABSTRACT

EU scholars have studied mobilization as a cross-level phenomenon. Individuals and organized interests seek preliminary rulings with the Court of Justice of the EU to challenge national rules. Likewise, the Commission takes member states to court where they infringe commonly agreed rules. However, litigation can also run horizontally in the EU system. EU institutions can go to court to annul actions of other EU institutions. Studying this so far neglected phenomenon of litigation, the paper analyses differences in mobilization across European Parliament, Council and Commission. To this aim it conceptualizes litigation decisions as resulting from an interplay of agency and structure. Decision-making within organizations and in the EU political system as well as different motivations of actors are presented to explain differences in horizontal litigation. Methodologically the analysis combines a database covering 160 horizontal annulment conflicts (1957 to 2017) and case studies based on expert interviews.

KEYWORDS:

• Annulment
• legal mobilization
• EU institutions
• organizational theory
• Court of Justice of the European Union
• opportunity structure

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. An earlier version of this paper was presented at the CES 2017 conference in Glasgow. I would like to thank the participants, in particular Andreas Hofmann, and two annonymous reviewers for constructive criticism and valuable comments. Tobias Hübler provided excellent research assistance.

2. There are twelve cases in total with two claimants (C-103/12, joint cases C-124 & 125/13, C-132 to 136/14) or defendants (C-181/91, C-378/00, C-178/03, C-122/04, C-299/05, C-411/06, C-427/12, C-43/12, C-88/14). All cases can be accessed via the webpage of the Court: https://curia.europa.eu/jcms/jcms/j_6/en/.

3. Number are taken from the most recent Annual Activity Reports from the legal services of the Parliament (2016), Commission (2017) and the Council (2017). Administrative support is excluded.

4. What is more, Member States may simply abstain from Council activity and act multi- or unilaterally. Such strategies may be less costly in terms of resources and offer more certainty about the positions pursued.

5. There is a further six cases for which information on the substance of the annulment conflict has been withdrawn and it is likely that these cases concern staff regulations as well.