The Judicialization of the European Regulatory Process. Litigation Strategies and Policy Change

This contribution sheds light on the judicialization of the European regulatory process from a political science and governance angle. As argued in the literature on Eurolegalism (Kelemen 2011), adversarial litigation practice has become more pronounced in Europe, partially as a result of European integration. This trend can be expected to have a significant substantial effect on regulation. Litigation across jurisdictions creates regulatory uncertainty and may result in policy change. Based on exploratory evidence the contribution examines three litigation strategies: litigation which aims at sanctioning non-compliance with existing regulation; litigation which seeks to challenge and potentially revoke regulatory decisions; litigation which signals a regulatory gap and calls for more stringent or different regulation. In my analysis I consider the role of various litigants such as consumer protection organizations or NGOs using litigation to exert pressure on both market actors and regulators, corporate actors challenging competitors and regulators, and policy-makers using litigation as an additional tool in the regulatory process. The cases covered include consumer protection related to the digital economy (e.g. procedures against Amazon’s Dash button facility in Germany, against privacy settings of Google, Facebook and Twitter in France), health risks (e.g. Plastics Europe suing the ECJ for the French ban on the use of plasticizers in food packaging) and energy efficiency standards (e.g. Dyson challenging energy efficiency tests before the ECJ; UK surveillance authority suing Icetech Freezers Ltd for faulty energy efficiency labelling). The contribution questions whether litigant activism indeed leads to more prescriptive and detailed regulation, as argued in the literature (Kagan 2001, Kelemen 2013).