The Constitution of Europe

In this paper we explored variation in interest groups’ choices of litigation and lobbying
strategies for influencing policy change. We proposed two sets of variables related to
private interests’ characteristics on the one hand and the EU decision-making output on
the other and hypothesized that they account for much of this variation. We then
investigated these variables in the context of four exploratory cases representing various
strategies. We find that in the examples we drew from secondary literature, the variables
we proposed are present as we would expect. (see Figure 2). Moreover, the interaction of
the variables – the ways in which the combination of private interests’ characteristics and
the decision-making output prompt strategy choices – seemed to be relevant.
Although this is essentially an exploratory paper, some findings can be highlighted. The
initial preference of all interest groups towards lobbying, rather than litigation was visible in
all of the case studies – even in the litigation-only example, where the firms persisted in
their unsuccessful attempts to press for legislation at the EU level. ). An important factor in
the heavy recourse to litigation in both the case of intellectual property rights and free
movement of goods seemed to be the profound legislative deadlock of the 1970s, the
period during which many of their landmark decisions were delivered. In the tariff
classification case study, the EU actors output also appears to have been important – ‘low
quality’ output of the ECJ, from the perspective of litigants and a comparatively responsive
Commissoin, post-SEA, shaped groups’ strategies. Where they were left with no choice,
they pursued litigation strategies, but when the Single Europe Act created a viable
lobbying target, they switched tactics and enjoyed greater success. More generally, the
efficacy of the legislative process appears to be a major factor in pushing actors away from
their default tendency to favor lobbying. The resource-variable is somewhat less well
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explored in the empirical section of this paper. All the case studies involve interest groups
with considerable resources If follows that, unfortunately, the impact of this variable could
not be illustrated. The organizational form variable on the other hand has turned out to be
a source of interesting variance. Overall, firms tend to account for most of the litigation
strategies explored here. As noted, in the intellectual property rights case study, the
organization that was responsible for one of the streams of ECJ cases was a national, not
European firm – SACEM, the French association of recording professionals. Similarly, in
the tariff classification case, the interests pursuing litigation strategies (if unsuccessfully)
were by and large individual firms and the large, pan-European lobbying groups that
eventually proved successful pursued litigation strategies alone.
In the contemporary EU, policy making moves as smoothly as it ever has. The use of
qualified majority voting has been increased with every treaty revision, and projects like
the single market and competition policy have enjoyed sustained attention from the
supranational actors for years. The ECJ is not particularly fast at delivering rulings, but is
effective enough to still offer a useful venue to actors seeking policy change by litigation
and to help provide negative integrative decisions laying the groundwork for the positive
integrative legislation of the other supranational actors. As Héritier (1999) has pointed out,
there are many formal and informal norms in place that ameliorate the potential deadlocks
in the legislative process.
A change in legislative efficiency could well occur if the accession of new member states is
not accompanied by significant revision in decisions-making mechanisms, a concern given
all the more weight by the rejection of the proposed Constitutional Treaty in France and
the Netherlands. This could have far reaching effects on the strategies of interest group
representation. A decrease in legislative output would very likely result in a compensating
increase in litigation activity. This might lead to an increasing dominance of firms in EU
interest representation as associations are relatively disadvantaged at litigation strategies
in comparison with individual firms. Finally, it should be emphasized that this is primarily a
conceptual and exploratory paper. It seeks to begin to fill a large gap between the
literature on judicial integration and on interest group behavior. Although both political and
legal strategies of interest representation are well established as central to our
understanding of the European integration process, they have been rarely analyzed in
relation to each other. With this paper, we hope to provide a basis for future more
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empirically rigorous work and to provoke some thought on the interplay between lobbying
and litigation in contemporary politics.