Business Lobbying

Successfully pursuing a litigation strategy is also resource intensive and requires an ability
to maintain focus over the long-term. Interest groups’ greatest successes come as a
product of fairly sophisticated litigation strategies that usually bring not one, but planned
sets of cases. Litigants have enjoyed success at changing legislation through legal means
even in the face of significant member state hostility by deploying strategies of rapid repeat
litigation (McCown 2003b). This is essentially a strategy whereby litigants, once they have
won a case, rapidly bring a subsequent suit before the court. This has the effect of locking
in the earlier, favorable ruling, by having it applied as precedent in later decisions. Writers
have long pointed to the advantages that accrue to repeat litigators (e.g. Galanter 1974)
and private actors have found that being repeat litigators is particularly effective in EU
judicial politics. The strategy works most effectively where a very organized interest group
with a narrow mandate and well endowed with resources is able to swiftly bring several
cases. It is even more effective if those actors that oppose the policy change embodied in
the court rulings, are less organized, and have difficulty effectively opposing these
strategies, either by filing counter suits or enacting legislation that might qualify the effects
of court rulings.6
In the time in which it takes the opposition to mount a counter, the repeat
litigators have brought multiple, subsequent suits. This strategy has proved effective for
actors even where it has been quite difficult to obtain any legislative changes to
compliment and support legal rulings (McCown 2003b).
In order to effectively use strategies of rapid repeat litigation, however, interests must be
organizationally structured so that they can maintain focus and consistent preferences
over complex policy issues over long periods of time. Large individual companies and
specialized associations have often the required organizational characteristics and
resources to engage in such litigation strategies. It follows that specialized sectoral
associations are more likely to engage in sequential litigation than encompassing peak
In practice, although groups with few resources may be able to occasionally bring suit and
win a case when an opportune point of law presents itself, larger, better-organized groups
with more extensive resources can make use of a wider range of litigation strategies. Alter
and Vargas (2000) and Conant (2002) have pointed out that even if actors get a ruling
from the ECJ making a legal interpretation favoring their policy preferences, where they fail
to follow through at the national level by lobbying member states to change legislation in
response to ECJ rulings and by mobilizing interests to focus sustained attention on issues,
all of which consolidate legal gains, the benefits may be marginal.