Mobilisation of Governments to Intervene in CJEU Proceedings against a Member State – Amicus Curiae Briefs by Proxy?

Civil society groups have been very effective recently in mobilising Member States to intervene in CJEU proceedings. In two major cases brought by the European Commission against Hungary’s LGBTIQ laws and its national sovereignty law, civil society groups have successfully mobilised 16 governments to intervene in the first case, and 14 in the second. At a time when neither the Commission, nor the Member States are willing to use their Treaty powers, pursuant to Articles 258 and 259 TFEU, to launch actions against Hungary’s systemic human rights and rule of law violations, the remarkably high number of EU governments’ interventions in these two cases seems to open a new chapter in legal mobilisation. Member States’ interventions in CJEU proceedings are not new and have been a frequent subject of research in, predominantly, preliminary ruling references. Interventions in infringement proceedings, however, are significantly less studied, especially those influenced by civil society groups. Strategic litigation by civil society groups is part of burgeoning literature, focusing mainly on the ways offered by Article 263(4) TFEU, preliminary rulings, or amicus curiae briefs. Using Member States’ governments as proxies in the ECJ, however, is an understudied development. While confirming previous hypotheses that Member States intervene in cases with significant consequences for the development of EU law and which deal with highly politicised matters, this paper adds two more: (1) governments decide to intervene under pressure from civil society groups and, (2) in order to avoid bilateral confrontation under Article 259 TFEU. Applying process tracing methods, this paper aims to reconstruct the activities of civil rights groups and the Member States involved in these cases in order to establish a causality mechanism between their activities and the interventions. By conducting interviews with governmental and non-governmental stakeholders, this paper seeks to answer the question: “To what extent did civil society groups influence the decision-making process of the Member States to intervene in Cases C-769/22 and C-829/24?” Answering this question is relevant in the current context of shrinking civil society space, persistent obstacles to access of NGOs to the ECJ, and of attacks on the independence on national judges to refer questions, whereby the Court continues to be perceived as a last resort for protecting human rights and the rule of law.