Lawyering Up Before the CJEU. Who Affords It? Does It Help? (Co-Authored by Henning Deters and Moritz Klock)

A major rationale behind the principles of direct effect and supremacy is to promote equal legal protection among EU citizens of different nationality and residence by empowering private litigants to vindicate their European rights before the Court of Justice of the EU (CJEU). Effective legal protection, however, also requires competent legal counsel. Since good lawyers cost money, access to legal counsel is most likely unequal to some unknown extent. Despite long-standing interest in the role of the legal profession in European integration at large, research has only recently focused on how lawyers shape day-to-day judicial politics. The extent to which the quality of legal counsel affects the proceedings before the CJEU and their outcomes is therefore surprisingly uncertain. This paper explores the access to legal counsel and its impact in CJEU proceedings. First, it examines how access is distributed among various kinds of litigants with different financial resources. We expect that wealthy litigants, such as corporations and lobby organizations, afford higher quality legal counsel than individuals and advocacy groups. We corroborate this hypothesis by comparing the average experience and prestige of the lawyers representing each type of litigant. Second, using all direct actions – including appeals – decided by the European Court of Justice (ECJ) in the past 20 years, the paper examines to what extent the quality of legal counsel matters for winning a lawsuit. Contrary to our expectation, we find that having more experienced and more prestigious counsel does not significantly raise the odds of winning when considering only private litigants. These findings raise intriguing puzzles. Why does it barely pay to lawyer up? And why do wealthy litigants do it anyway? The analysis is based on preliminary evidence from a new data-set containing, inter alia, procedural and party information for all proceedings as well as the outcomes of direct actions decided by the ECJ between 2002 and 2021.