Civil Society’s Power for Legal Change in the EU: The Application of the EU Charter of Fundamental Rights in Litigation Practices Before the Court of Justice of the European Union in Five CEE Countries

Civil society has played a crucial role in reinforcing the democratic processes in critical political momenta. In politically sensitive cases – racial discrimination, gay marriages, women’s suffrage, gender equality and pay gaps, environmental protection, consumer protection – courts and civil society activists have been the ones paving the path for legal and policy changes. Although most examples of such landmark litigation cases come from the US, rights revolution in much more mild but also substantial form has been occurring in the European context in the field of equality (the Defrenne judgements issued in the 70s by the Court of Justice of the European Union (CJEU); the definition of disability reversed in the Ring and Skouboe Werge judgement issued by the CJEU in 2013). This paper looks into the use of litigation by civil society organisations concerning fundamental rights in the context of democratic backlash in five CEE countries (Hungary, Poland, Czech Republic, Bulgaria and Romania). It provides an overview of cases brought before the CJEU under the preliminary ruling procedure (Art. 267 TFEU) with reference to the EU Charter and more specifically explores several litigation actions and the prominent actors behind them to enhance our understanding of the supranational litigation triggered in the area of fundamental rights in the selected CEE Member States. The incentives of civil society representatives to litigate or not in the context of backsliding democracy to uphold fundamental rights have been further explored through interviews with a selection of NGOs representatives and national litigators.