This paper examines variation in the litigation of secondary EU legislation (directives & regulations). Drawing on original data covering within-case information on 608 instances of litigation in the EU15 across 68 acts between 1964 and 2009, it demonstrates that there is variation in the extent to which EU litigation arises from direct conflicts between EU legislation and domestic law.
Theoretically, it draws on Stone Sweet’s (2010) work on the mechanisms of ‘Third-party Dispute Resolution’ (TDR); a process by which two parties in dispute activate judicial institutions to settle their conflict. Rooted in earlier work on neo-functionalist readings of the ‘constitutionalisation’ process (Stone Sweet & Brunell, 1998), Stone Sweet claims that EU contracting and rulemaking (e.g. secondary legislation) may create a ‘societal’ demand for TDR. This paper raises the cautionary objection that, considering a wider universe of EU litigation, the connection between EU rule-making and litigation is less straightforward than assumed. Specifying conditions under which rulemaking and dispute resolution are connected, it seeks to contribute to the development of the theory.
Empirically, the paper tests existing explanations for why some EU laws lead to conflict with national law and others do not. Arguing that the observed variation in litigation cannot be explained by aggregate country-level factors but rather issue- and case-specific variables, it suggests looking into how EU litigation links to conflicts at the bargaining stage, that is conflicts between the various EU member states negotiating over new EU rules. This paper is part of a bigger project studying the link between EU rulemaking and domestic litigation. It adds to the literature on EU law by adopting a more design-led approach to investigating the mechanisms linking it to litigious conflicts.
