Instrument of Power or Weapon of the Weak? Litigation and Legal Representation Before the European Court of Justice

The proliferation of regional organizations and international courts has expanded opportunities for nongovernmental actors to pursue transnational litigation. In the European Union (EU) legal mobilization before the European Court of Justice (ECJ) has been particularly vigorous, yet a core puzzle remains unresolved: Does litigating at the ECJ empower the “have nots,” or does it reinforce the voice of the “haves”? While some studies point to the judicial expansion of EU rights protections, others stress the resource advantages of corporate litigants and their ability to mobilize specialist “Euro-lawyers.” Drawing on party capability theories and leveraging the first dataset of parties and lawyers in all national court cases referred to the ECJ, we assess whether businesses obtain better legal representation before the Court and how this advantage shapes their capacity to satisfy both their immediate demands but also provoke legal change. Drawing on data on 60 years of litigation, we find profound and persistent differences in the quality of legal representation that private litigants – individuals, companies and interest groups – rely on in court. However, this does not mean that resources necessarily determine outcomes. Overall, our results partially reconcile the debate over whether litigation before the ECJ tends to advance individual rights or magnify corporate power.