Political Interests and Public Opinion

These strategies are driven primarily by litigation but supplemented or supported by
lobbying efforts at the EU-level. The classic example of this concerns EU rules on non-tariff
barriers to trade, or ‘measures having equivalent effect to quantitative restrictions’ on trade.
These are prohibited by Articles 28-30 (ex. Art. 30-36) of the treaties and now form the
backbone of the common market. They were, however, most extensively articulated by the
Court and ECJ decision-making has driven the development of this area of EU policy.
In the era of the Luxembourg Compromise, when legislative output enacting the
common market was virtually nil, the ECJ famously delivered its Dassonville (ECJ 8/74) and
Cassis (ECJ 120/78) decisions . These decisions substantially weakened member states’
capacity to enact regulations and standards that had the effect of discriminating against
imports and establishing the principle of mutual recognition. These cases and all of the many
following decisions were preliminary references, brought by private actors. Again, the litigants
are largely firms and those large enough to have a trans-European interest. Repeat litigators
can be identified: e.g. Denkavit, the animal feed company, brings 18 cases before 1988. And
again, the litigants are highly successful because the Court’s decisions turn out to be
foundational to the EU legal order. Nevertheless, interest groups did seek to lobby Brussels
and to engage the interests of the supranational institutions. The Commission responded
swiftly to the Cassis decision, trying to use it as the basis for a renewed legislative agenda
but met with little success (Alter and Meunier-Aitsahalia). For a long time, the principle venue
for attacking member state measures with protectionist effects and advocating the
construction of European rules, was the ECJ. After the Single European Act reinvigorated the
integration project in general and market integration in particular, deadlock quickly
decreased. Now, it is a policy area characterized largely by QMV and relatively efficient
decision-processes. Litigation, in the 1990s has slowed (Stone Sweet and McCown 2004).
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For several decades, interest groups concentrated their attention on litigation, only
supplementing it with lobbying on issues related to the free movement of goods. This was
possible because of the availability of large numbers of firms readily able to deploy litigation
strategies and highly worthwhile because of the legislative deadlock of the time. As an area
of law it still receives a fairly large number of references, but, as decision-making processes
have changed to make it one of the most integrated policy areas, all interest groups have
shifted resources towards lobbying and more business associations have become involved in
the policy area.