This paper deals with national governments as active litigants before the European Court of Justice (ECJ). By initiating actions for annulment against supranational administrative acts adopted by the European Commission, governments can have the ECJ review the legality and declare void legally binding interferences with domestic policy application by the Commission. In this context, this paper addresses the puzzling observation that some national governments are much more successful litigants than others. We discuss three conventional explanatory approaches potentially able to account for this phenomenon: different levels of legal expertise institutionalized in national administrations, different levels of experience of frequent litigants, and a potential constraint on judicial independence by political power. We show that these conventional approaches fall short of explaining the observed variation because they all rely on the problematic assumption that active governmental participation in judicial proceedings always indicates a willingness to win such proceedings by the litigating government. In contrast, we argue that the benefits governments extract from active litigation are often independent of or even negatively related to legal success. This is because they can use the initiation of litigation to extract immediate benefits by signaling commitment to domestic constituents and because negative rulings can be used as normative lever in domestic reform processes when bargaining with veto players. We test these arguments by employing regression analysis using our own data on legal success in annulment proceedings.
