This paper poses an important challenge to the growing trend of strategic environmental litigation in the EU: when making strategic choices about bringing, framing, and litigating claims, what becomes more important—being heard through strategically critical procedural choices or being true through ensuring that rights holders and the environment remain at the forefront of decision-making? There are many legal hurdles to bringing environmental claims and it is possible that the voice of the environment and those most adversely affected by its degradation is lost in the strategic legal decision-making. This study uses a small number unstructured scoping interviews with practitioners active in bringing litigation to the CJEU to inductively analyse voice and representation in strategic environmental litigation. This initial research indicates that there are areas which should be further explored. First, all of the practitioners brought up the issue of access to resources. This raises concerns about potential elitism. Second, practitioners highlighted that there are numerous strategic choices made during case selection and framing which could affect how voices are heard. Finally, practitioners felt strongly that admissibility rules have a negative impact on claimants’ voices. Challenges in legal standing and establishing individual harm or direct concern have an enormous impact on what claims are heard and how they are heard.

The preliminary reference procedure is a crucial tool for EU law enforcement. Yet, its usage varies greatly across the Member States. This paper deals with a notable case in which EU justice has not been mobilized: Greece. Until 2023, Greek judges had not made any preliminary references in the migration and asylum fields, despite significant migrant flows. This study investigates why Greece, with its critical migration challenges, became a zero-reference case.

Drawing on empirical and doctrinal research, this paper tests two main hypotheses. The first hypothesis, derived from the “judicial empowerment thesis,” suggests that Greek judges may have been hesitant to refer cases due to political or institutional factors. The second hypothesis, based on scholarship highlighting the role of lawyers and civil society in promoting EU litigation, predicts that the absence of references reflects a lack of activist lawyers, skills, or resources.

The findings challenge common assumptions, revealing that Greek judges are not inherently reluctant to refer cases. Instead, obstacles to access to justice and civil society’s attitudes help understand the absence of references. Going beyond judges, this paper explores how perceptions among migrant supporters, their legal consciousness, and traditional modes of action contribute to the lack of pressure for preliminary references.

This research contributes to understanding the complexities surrounding judicial dialogue and enforcement of EU law. It offers insights into how the interplay of institutional, legal, and social factors shapes legal mobilization and strategic litigation.

This Article examines how private economic actors mobilize EU law to pursue broader legal, political, economic, or societal ends. It studies the strategic nature of corporate litigation before the Court of Justice of the EU in the context of the EU Emissions Trading System, a prime illustration of neglected strategic climate litigation. Corporate cases against the ETS have so far fallen under the radar of scholarship focused on EU strategic climate litigation. Such underrepresentation is linked to a double bias in scholarship, favoring high-profile climate cases that advance public interest causes and progressive agendas. Applying a normatively open definition of strategic litigation and actor-centered methodological approach, the Article brings to light features of corporate strategic litigation in EU law which otherwise go unseen. It offers empirical observations into boundary-testing behavior by private economic actors and the notion of a private generalizable interest, untangling strategic climate litigation by private economic actors as overlooked proponents in Court. The Article finally distinguishes a selection of legal strategies through which corporate actors mobilize EU law, such as instances of coordinated litigation; futile and seemingly routine challenges initiated before the Court to test judicial waters; and the use of litigation as a political advocacy tool.

Strategic litigation plays a crucial role in advancing human rights in the digital age, particularly in cases where data subjects, such as migrants and protection seekers, experience significant power imbalances. In this Article, we consider strategic litigation as part of broader legal mobilization efforts. Although some emerging studies have examined contestation against digital rights and migrant rights separately using legal mobilization frameworks, scholarship on legal mobilization concerning the use of automated systems on migrants and asylum seekers is scarce. This Article aims to address this gap by investigating the extent to which EU law empowers strategic litigants working at the intersection of technology and migration. Through an analysis of five specific cases of contestation and in-depth interviews, we explore how EU data protection law is leveraged to protect the digital rights of migrants and asylum seekers. This analysis takes a socio-legal perspective, analyzing the opportunities presented by EU data protection law and how civil society organizations (CSOs) utilize them in practice. Our findings reveal that the pre-litigation phase is particularly onerous for strategic litigants in this field, requiring a considerable investment of resources and time before even reaching the litigation stage. We illustrate this phase as akin to “climbing a wall,” characterized by numerous hurdles that CSOs face and the strategies they employ to overcome them.

Both European Union law and the European Convention on Human Rights offer an opportunity structure for a broad array of interests to pursue their objectives through strategic litigation. The spectrum of rights that litigants can claim is sufficiently broad that no consensus has emerged on the general consequences of such litigation. While much research has emphasized European law as a resource for civil society groups, EU law in particular has also been identified as a boon for businesses who challenge cornerstones of coordinated capitalism. This paper sets out to provide a better empirical basis for a normative evaluation of the consequences of strategic litigation in European law by asking who engages in it and who does not. It draws on data from a large-scale survey among interest groups in eight European countries. While results show significant differences in country-level litigation rates, the focus of this analysis is on the impact of group characteristics on the choice of litigation as a strategy. The findings confirm that litigation requires specific resources but highlight that groups with a prior interest in European affairs and those with antagonistic relations to national authorities are the most likely to turn to strategic litigation based in European law.

This Article discusses the emerging strategic litigation practice in the European Union through the lens of participatory democracy. After situating such a practice both historically and conceptually within the specificities of the EU legal order, it explores whether and the extent to which strategic litigation, understood as an additional form of participation in the Union’s democratic life, may contribute to EU participatory democracy and under which conditions. It unveils that while strategic litigation carries the potential to enhance democratic participation in the EU, it also risks—due to limited judicial literacy and unequal access to justice—empowering those already powerful. For strategic litigation to unleash its democratic potential at scale, EU courts must—as required by the “Provisions on Democratic Principles” of the Treaty of Lisbon—ensure a participatory enabling environment capable of proactively catalyzing and facilitating the ability of ordinary citizens—as well as diffuse, under-resourced and traditionally overlooked groups—to be better able to contribute to the Union’s democratic life. Ultimately, no legal order worth of its name should rely on the heroism of its citizens and residents to keep its legal system in check.

In 2020, amid aggressive and inflammatory political discourse and an unprecedented wave of violent attacks against migration Non-Governmental Organizations and their staff, the Greek Government sought to establish a new legal framework for the registration of Non-Governmental Organizations active in the fields of international protection, migration and social inclusion, and their members. This Article aims at providing an overview of the EU-law based litigation brought by Greek Civil Society organizations to challenge the new framework for breaching fundamental rights, and at exploring its effects beyond the Court proceedings. This Article concludes that, counterintuitively, the existence of pending litigation against the Regulation establishing the NGO Registries hampered advocacy on this issue with the European Commission.

This Article inquires into the aftermath of judgments by the CJEU under the preliminary ruling procedure under article 267 TFEU in cases of strategic litigation. As the principal objective of strategic litigants is to effectively achieve broader societal, political, economic, or legal change, the afterlife of a judgment is crucial for them. While excellent scholarship exists on strategic litigation in EU law, much remains unclear on what happens to a case after the Court of Justice of the EU (CJEU) has given its judgment. Does the referring court and other national courts faithfully comply with the judgment of the CJEU? Do governments implement the ruling? This Article takes the decision of the CJEU in Landespolizeidirektion Steiermark, which concerns the reintroduction of internal border controls, as case study to inquire into the different factors that affect the implementation of a preliminary ruling that is the outcome of strategic litigation. The main argument in this Article is that the implementation of preliminary rulings is determined by the interplay between three different factors: The role of strategic litigants to initiate follow-up litigation, the receptivity of national courts to comply with a preliminary ruling, and the European Commission’s willingness to enforce a preliminary ruling.

Strategic litigation is a form of legal mobilization, where actors bring cases before judges not only to win in court, but also to pursue broader political, social or economic ends. Various actors can use the law strategically – big corporations, specialized non-governmental organizations or individual academics. The ends can range from resisting market regulation or a political advocacy campaign to simply “testing the law”. The results of strategic litigation maintain or change power relations in society, economy or politics.

This article provides an analytical framework for the Special Issue on Strategic Litigation in EU Law. This framework can be used to study strategic litigation mobilizing EU law. A contextual and normatively open definition of strategic litigation, recognizes that strategic litigation as a practice operates within specific social, institutional, and economic contexts while accommodating a spectrum of agendas from progressive to conservative. The framework encompasses three dimensions: the actors involved, the unique legal structures of EU law, and its effects—both in terms of strictly legal outcomes and of broader socio-political consequences. Ultimately, this framework aims to illuminate the dynamics of (dis)empowerment characterizing strategic litigation, paving the way for a comprehensive exploration of its implications within the EU legal landscape.

For strategic litigation, the existence of independent judicial institutions is a prerequisite. In this Article, based on the case of Poland, I analyze what happens when some domestic judicial institutions are weakened and how this affects the ability of different stakeholders to engage in strategic litigation. I argue that strategic litigation was an important tool used by civil society and crucial for countering democratic backsliding in Poland in 2015–2023. In addition to traditional actors involved in strategic litigation in Poland, new ones have joined—such as the Human Rights Commissioner (the “Ombudsman”) or increased their involvement—such as corporate actors. Also, the prosecution office, controlled by the populist government, became active in litigation conducted by right-wing NGOs. Paradoxically, the rule of law crisis also resulted in the popularization of strategic litigation before the Court of Justice of the European Union and some domestic courts, which began to apply the Constitution directly.

Internet tech giants are regulated by multiple overlapping yet distinct pieces of EU legislation that establish a range of substantive digital rights for internet users, and varying legal opportunity structures for strategic litigation within their enforcement architecture. My Article focuses on the digital rights and enforcement architecture of the EU’s new Digital Services Act and Digital Markets Act compared to the General Data Protection Regulation. Consideration of key strategic litigation concerning the existing Regulation informs my exploration of opportunities and barriers for strategic litigation under the new Acts. Analysis of these strategic litigation opportunities necessarily encompasses the EU’s new regime for mass claims under the Representative Action Directive, and interaction between internet users’ digital rights and consumer protection laws. I contend that the new Acts comparatively centralize public enforcement power in the European Commission, marginalizing civil society, and effectively precluding most strategic litigation by civil society with regard to public enforcement. Furthermore, the new Acts could increase regulatory fragmentation and the risk of legal incoherence by establishing additional regulatory authorities and competences alongside existing institutions and regimes. I argue that private enforcement strategic litigation against internet tech giants could empower civil society to influence the development of digital rights. Private enforcement strategic litigation could also aid legal coherence as an enforcement mechanism that allows multiple areas of law to be raised and addressed at the same time, rather than in silos. However there are considerable barriers to such litigation, including legal questions such as cross-border jurisdiction and standing, and the resources needed for effective strategic litigation. Overall, concerning legal analysis for strategic litigation, my article demonstrates that we must consider both public and private dimensions of enforcement architecture across multiple area of law, taking into account the different power dynamics of different enforcement mechanisms, to understand the opportunities for strategic litigation to advance digital rights in the internet attention economy.

Private actors and institutions, and by extension private law itself, are increasingly being forced to reckon with a multiplicity of challenges that extend beyond the domain of private law as it is traditionally conceived. They reflect threats to the global constitutional order and liberal constitutionalism, and threats to individual and collective fundamental rights and constitutional values. As a result, the role of private law in framing and facilitating the development of the global economy and globalization often does not fall within the direct purview of public international lawyers. This editorial aims to examine the role of private law in the litigation and enforcement of public interests against the background of the public/private divide. This is done in light of the increasing role adopted by private actors, including corporations, beyond the private realm.

Climate change has become a household term. As the climate crisis grows increasingly pressing, climate litigation has proven instrumental as a driver for change. Brazil is an important jurisdiction for climate matters: It is the sixth largest global greenhouse gas emitter, responsible for 3.2 percent of global emissions,1 and home to the largest extension of the Amazon rainforest. Climate litigation has been gaining traction, but it is still far less frequent than environmental litigation at large. Against the backdrop of the state and trends of climate litigation in the country, this article explores theoretical and practical avenues to further expand the strategic deployment of climate cases in Brazil. First, it analyzes how climate claims can be construed with arguments that are impervious to the political question doctrine. Second, it explores possibilities of bringing claims against private entities, challenging more granular obligations arising out of Environmental, Social and Governance (ESG) frameworks. Third, it discusses the role of lawyers in bridging theoretical and practical gaps, namely those between environmental law and climate law, between scientific experts and courts, and between international and domestic climate change regimes.

The urgency of the global climate problem has prompted an increasing turn to the courts to accelerate action. While still a relatively new phenomenon, “strategic” climate cases have been on the rise since 2015. Litigants in these cases aim to produce ambitious and systemic outcomes. However, with both time and resources limited, how might we best discern which cases have the greatest prospects of achieving cut through in the policy and public debate, and accelerating climate action? This Article contributes to developing literature evaluating the “recipe for success” in strategic climate claims. It provides a comparative analysis of three recent, high-profile wins in climate cases from Australia—Sharma—, Germany—Neubauer—, and the Netherlands—Shell—, examining their commonalities to give insight into the ingredients for successful strategic climate litigation. Our analysis shows how the three cases combine careful, strategic planning, with legal imagination and innovation to generate outcomes that heighten their capacity for broader impact. Evaluating the success of these types of prominent climate cases provides important guidance for future case design.