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Journal of European Integration
ISSN: 0703-6337 (Print) 1477-2280 (Online) Journal homepage: http://www.tandfonline.com/loi/geui20
Is the Commission levelling the playing field?
Rights enforcement in the European Union
Andreas Hofmann
To cite this article: Andreas Hofmann (2018) Is the Commission levelling the playing field?
Rights enforcement in the European Union, Journal of European Integration, 40:6, 737-751, DOI:
10.1080/07036337.2018.1501368
To link to this article: https://doi.org/10.1080/07036337.2018.1501368
© 2018 The Author(s). Published by Informa
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Group.
Published online: 12 Dec 2018.
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ARTICLE
Is the Commission levelling the playing field? Rights
enforcement in the European Union
Andreas Hofmann
Department of Political Science and Centre for European Research (CERGU), University of Gothenburg,
Gothenburg, Sweden; Otto Suhr Institute of Political Science, Freie Universität Berlin, Berlin, Germany
ABSTRACT
This article investigates important shifts in the way that rights are
enforced in the EU. On the one hand, the Commission is increas-
ingly withdrawing from centralised rights enforcement, initiating
less and less infringement proceedings and shifting the bulk of its
work towards more informal compliance management tools. At
the same time, private, de-centralised rights enforcement is
becoming more prominent, at least as measured by the amount
of preliminary references submitted to the CJEU. The Commission
actively supports this trend, and in effect outsources its own
enforcement work to private actors, both individual and collective.
The article outlines Commission efforts to facilitate private enfor-
cement and discusses whether private enforcement can substitute
for centralised enforcement. It concludes that all channels of rights
enforcement have a role to play, and the loss of any single channel
cannot easily be compensated.
KEYWORDS
European Commission; legal
mobilization; rights
enforcement; collective
redress; interest groups
Introduction
One of the characteristic features of European Union (EU) law is its emphasis on
substantive rights. Over time, the EU has steadily evolved to become a distinctly
rights-based polity. The origin of this development was the founding members’focus
on the four ‘market freedoms’, which were interpreted as fundamental rights: a right to
the free movement of goods, persons, services and capital. More recently, additional
rights have been particularly pronounced in the area of non-discrimination. The founda-
tional principle, the prohibition of discrimination based on nationality (now Art. 18
TFEU), was first extended to equality between men and women, and later to all
discrimination based on sex, race, colour, ethnic or social origin, genetic features,
language, religion or belief, political or any other opinion, membership of a national
minority, property, birth, disability, age or sexual orientation (Art. 21 of the Charter of
Fundamental Rights). Increasingly, measures pertaining to social policy have also been
incorporated in this ‘rights revolution’(Mabbett 2011). By virtue of its superiority and
direct effect, EU law now vests Union citizens with a wide array of substantive rights that
national authorities are obliged to uphold.
CONTACT Andreas Hofmann mail@ahofmann.eu Department of Political Science and Centre for European
Research (CERGU), University of Gothenburg, Gothenburg, Sweden
JOURNAL OF EUROPEAN INTEGRATION
2018, VOL. 40, NO. 6, 737–751
https://doi.org/10.1080/07036337.2018.1501368
© 2018 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group.
This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives License
(http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial re-use, distribution, and reproduction in any
medium, provided the original work is properly cited, and is not altered, transformed, or built upon in any way.
Whether EU rights have practical effects, however, depends essentially on the will-
ingness and ability of national authorities to comply with their obligation to grant these
rights. Experience shows that this is often not the case, or there is at times enough
uncertainty about the actual nature of these rights that conflict arises. In those instances,
rights have to be activated –claimed –in the face of alleged infringements. This article
argues that over the last years an important shift has taken place in the way EU rights
can be enforced in principle and are enforced in practice. Rights enforcement in the EU
has traditionally rested on two channels. On the one hand, the Commission oversees a
centralised mechanism of rights enforcement, centred around the infringement proce-
dure, by which it can take non-complying member states to the Court of Justice of the
European Union (CJEU). On the other hand, the primacy of EU law over national law,
coupled with its direct effect, allows private citizens, groups and companies to claim EU
rights de-centrally in national courts. The article highlights a distinct shift towards the
de-centralised mechanism. The Commission has reduced its centralised enforcement of
EU law to levels not seen since the early 1990s, when the EU had less than half the
number of member states that it has today. It explicitly links its withdrawal from
centralised enforcement to an increase in private enforcement, and it has continuously
supported measures to make de-centralised enforcement more accessible to a larger
class of litigants, including collective actors such as interest groups. The article outlines
this ‘outsourcing’of enforcement to private actors in detail and discusses whether rights
enforcement can rely on one channel alone, taking account of the advantages and
drawbacks of both the centralised and the de-centralised channel.
The article proceeds in the following way: a first section outlines the centralised
channel for rights enforcement in the EU. It demonstrates the on-going withdrawal of
the Commission from the infringement procedure and discusses possible reasons for this
development. A second section outlines the de-centralised channel for rights enforce-
ment, concentrating on the Commission’sefforts to ‘level the playing field’by support-
ing access to justice initiatives designed to facilitate litigation for individuals of limited
means, in particular its efforts to promote collective redress and interest group litigation.
Afinal section evaluates the relative merits of both channels of rights enforcements and
discusses whether private enforcement is a valid substitute for centralised enforcement.
Centralised enforcement by the commission
Policing member state compliance with legal obligations is one of the central tasks of
the Commission. In the textbook version, the Commission, as ‘guardian of the treaties’,
watches over policy implementation in the member states, intervenes where it sees
deficiencies or outright non-compliance, and initiates judicial proceedings where the
defendant member state does not take appropriate action (Chalmers, Davies, and Monti
2010, 318). In practise, the Commission carries out its enforcement work in several layers
of differing formality and visibility (Smith 2016). The most informal layer, which Melanie
Smith calls the ‘compliance promoting toolkit’, consists of such mechanisms as non-
binding implementation guidelines, package meetings with member state authorities,
fitness checks and ex-post evaluations of legislation, correlation tables that monitor the
transposition of directives and the occasional physical inspection (Smith 2016,70–3).
Somewhat more visible, at least when it comes to leaving a quantifiable track record, are
738 A. HOFMANN
the Commission’s notification database for transposition measures, its complaints hand-
ling database that facilitates correspondence with the complainants, and, perhaps most
prominently, EU Pilot. The latter in particular constitutes a formalisation of the exchange
of informal communication between the Commission and member state authorities that
used to precede the start of formal infringement proceedings (Smith 2016, 66). EU Pilot
acts as an informal clearinghouse for cases of potential infringements but is not formally
part of the infringement procedure. The formal legal layer of the Commission’s enforce-
ment work consists of the infringement procedure proper, which officially begins with a
‘letter of formal notice’addressed to the member state in question and proceeds via a
‘reasoned opinion’to a potential referral of the case to the CJEU, which is the final
arbiter of such disputes. The Commission has complete discretion over all of its enforce-
ment action and can terminate its investigations at any time so long as the CJEU has not
yet issued a judgment (Craig and de Búrca 2011, 415), leading the current CJEU
president Koen Lenaerts to describe the procedure as ‘a political tool at the
Commission’s disposal’(Lenaerts and Gutiérrez-Fons 2011, 4).
In recent years, the Commission has increasingly withdrawn from the legal layer of
centralised enforcement. It initiates less and less formal infringement procedures and
over the last years has referred only a very small number of such cases to the CJEU
(Figures 1 and 2). The number of letters of formal notice sent by the Commission sank
from 1492 in 2005 to 727 in 2017. The decline is even more dramatic when it comes to
court referrals. While at its peak in 2006 the Commission referred 254 infringement cases
to the CJEU, this number dropped to 41 in 2017. This constitutes a fundamental shift in
the Commission’s approach to centralised enforcement. Numbers as low as the current
Figure 1. Letters of formal notice.
Data based on the Commission’s annual reports on monitoring the application of EU law and the Commission’s online
infringement database.
1
JOURNAL OF EUROPEAN INTEGRATION 739
have not been seen since the early 1990s, a time when the EU aquis was much more
limited in scope and the number of member states was less than half of what it is today.
There are a number of explanations for this development. For one, the decline in
infringement proceedings reflects an increasingly restrained policy activism that has
begun with the second Barroso Commission (Kassim et al. 2017, 666). To some extent,
the decline in formal notices goes hand in hand with a recent decline in legislative
activity. Between 1988 and 2017, the number of new letters of formal notice sent per
year was moderately correlated with the amount of transposition deadlines for directives
in the same year (r = 0.4184).
2
However, no such correlation exists between transposi-
tion deadlines and referrals of infringement cases to the CJEU, even with a two-year
(r = -0.0493) or three-year (r = -0.0071) time lag. There is little evidence to suggest that
more ‘seasoned’pieces of EU legislation pose fewer substantive implementation pro-
blems than newer pieces. On-going reviews of the implementation of, for example,
environmental law point to substantial problems even with older pieces of EU law
(European Commission 2017d). The decline of referrals to the CJEU therefore cannot
be explained by reference to legislative activity.
Second, the decline in judicial enforcement reflects a shift in the Commission’s focus
toward less formal layers of enforcement work. Several studies have pointed toward the
Commission’s increasing use of management tools (Hartlapp 2009) and ex-post legisla-
tive evaluations (Van Voorst and Mastenbroek 2017). This shift has been criticised as
decreasing transparency and legal certainty from the point of view of the affected
individuals (Krämer 2014, 251; Smith 2016), whose complaints continue to serve as a
constant fire alarm to the Commission (Tallberg 2002). However, even the amount of
cases that the Commission feeds into EU Pilot has decreased almost by half between
2013 (1502 new cases) and 2016 (790 new cases). In response to the criticism toward the
Figure 2. Cases referred to the CJEU.
Data based on Stone Sweet and Brunell (2007) and the CJEU annual reports on judicial activity.
740 A. HOFMANN
‘informalization’of its enforcement work, the Commission has indicated that important
cases will no longer go through EU Pilot but proceed straight to the formal procedure
(European Commission 2017e, 20). If this should be the reason for the decrease in EU
Pilot cases, it has seen no counterpart in the numbers on formal infringement proce-
dures. This should be put in contrast to the continuously high number of complaints
received by the Commission, which if anything have increased since 2012 (European
Commission 2017e, 18).
Finally, the decline in formal enforcement activity can be seen as a reflection of the
Commission’sefforts to ‘outsource’enforcement to other actors. On the one hand, a
number of EU agencies have in recent years been delegated direct enforcement author-
ity (Scholten 2017). For the time being, however, these remain limited to a narrow band
of subject matters such as financial markets, medical technologies, aerospace and fish-
eries. On the other hand, and more importantly, the Commission actively encourages
the private, de-centralised enforcement of EU rights. The number of private rights claims
that have reached the EU Court of Justice from national courts through the preliminary
reference procedure has indeed reached a new record in 2017, with 533 newly regis-
tered cases (Court of Justice of the European Union 2018). References for preliminary
rulings now make up almost three quarters of the CJEU’s caseload. The Commission
makes the connection to its own reduced efforts quite explicit: ‘The overall decrease of
the number of infringement procedures can be put in relation to the important increase
of preliminary rulings under Article 267 TFEU since 2010. The Court of Justice has
addressed conformity issues of national laws in regard of EU legislation in about half
of its judgments under Article 267 TFEU since 2010 and identified non-conformities in
numerous cases’(European Commission 2015, 16). This statement indicates that the
Commission regards private enforcement as a potential substitute for its own efforts, in
effect as a form of de-central infringement procedure.
Outsourcing enforcement to private actors gives the Commission the opportunity
to concentrate on its own policy priorities. Over the years, the Commission has issued
a number of policy documents outlining its enforcement priorities (European
Commission 2002a,2007,2017b). Its focus on policies shifts over time, but a common
thread is that the Commission intends to target what it calls systematic and persistent
infringements. This in particular encompasses national rules and general practices
that hinder citizens, groups and companies from accessing national courts and the
preliminary reference procedure (European Commission 2017b, 14). In other words,
the Commission intends to use centralised enforcement measures to facilitate de-
centralised enforcement. In practice, however, the Commission’s enforcement prio-
rities rarely shine through in the cases that it pursues to the CJEU. Among the 123
cases that the Juncker Commission had referred to the CJEU until June 2017, not a
single one targeted obstacles to private enforcement, while about 10 per cent
targeted individual infringements (Hofmann 2017), which its policy documents had
de-emphasised (European Commission 2017b, 15). It is therefore not evident that the
reduced judicial activity of the Commission results in a channelling of limited
resources towards the most pressing and systematic cases. Rather, it appears that
the Commission’s on-going withdrawal from the legal layer of centralised enforce-
ment more likely constitutes the loss of one of the two channels of the EU’stradi-
tional enforcement model.
JOURNAL OF EUROPEAN INTEGRATION 741
This would not constitute a grave problem if the two mechanisms, centralised and
de-centralised enforcement, were in fact interchangeable. The next section outlines the
mechanism of private enforcement and points to some of its deficiencies, particularly
where private interest are too powerless to claim rights, or where nobody has standing
to enforce a public interest. The Commission has indeed promoted a number of
measures to combat these problems in an effort to level the playing field in private
enforcement. Subsequent sections outline these efforts and discuss whether this is
enough to compensate for its own reduced engagement in enforcement.
De-centralised enforcement of EU rights
The possibility to privately enforce EU law in national courts is a feature that sets the
legal order of the European Union apart from other sources of international law (Dawson
and Muir 2011, 754). In its early foundational judgments, the Court of Justice made it
clear that EU law would constitute a direct source of rights for citizens and that it was
the duty of the legal institutions of the member states to uphold these rights (Wilman
2015, 8). This essential principle is now part of EU primary law. Article 19 TEU states that
‘Member States shall provide remedies sufficient to ensure effective legal protection in
the fields covered by Union law’. Article 47 of the EU’s Charta of Fundamental Rights
provides more details on the principle of ‘access to justice’for citizens:
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has
the right to an effective remedy before a tribunal in compliance with the conditions laid
down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent
and impartial tribunal previously established by law. Everyone shall have the possibility of
being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid
is necessary to ensure effective access to justice.
Private rights enforcement entails that citizens who feel their EU rights were infringed
upon take their grievances to a national court. The national court assesses the rights
claim and can do one of three things: it can discard the rights claim, it can apply EU law
itself and enforce the rights claim directly, or it can stay proceedings and refer the
question to the CJEU. In the latter case, the CJEU gives an authoritative interpretation on
the proper application of EU law –mostly relating to whether a national law contravenes
EU law –and passes the case back to the referring court for a final decision on the
merits. Member states have autonomy over the (judicial) procedures by which this
principle is applied. The CJEU, however, has repeatedly emphasised that such proce-
dures must constitute an effective means of enforcing EU rights, and that it must not be
more difficult to enforce an EU right than it is to enforce a national right (Craig and
Gráinne 2011, 218–20).
While this opportunity for private enforcement has led to a steady caseload of EU
rights cases before national courts, there is a concern that this mechanism privileges
resourceful claimants and powerful concentrated interests while leaving gaps in the
enforcement of the rights of citizens of lesser means (Kelemen 2003; Dawson and Muir
742 A. HOFMANN
2011). Research on litigation has repeatedly pointed out that access to court proceed-
ings empowers primarily the already powerful (Galanter 1974; Börzel 2006; Slepcevic
2009). Companies, for example, have been very adept at using litigation based on EU
law to set aside unfavourable national legislation. But not everybody is equally well
positioned to use this system to give effect to their rights claims. Not every individual
with a valid claim is aware of their rights and can muster the necessary resources to
activate the legal system and sustain a challenge (Conant et al. 2017). In addition, access
to justice –in terms of such things as legal standing, the costs and length of legal
proceedings, and the available remedies –varies widely between member states. EU
institutions, and especially the Commission, have recognised these shortcomings.
Individual pieces of EU legislation now contain specific clauses on access to justice for
citizens in an effort to partially harmonise procedural law in EU member states
(Eliantonio and Muir 2015). Moreover, some horizontal efforts exist within the limited
competences the EU has in this field. Directive 2003/8, for example, sets certain mini-
mum standards for legal aid to individuals in certain types of cross-border disputes
concerning civil and commercial law. Extensive information campaigns such as the
launch of the Commission’s E-Justice portal in 2010 have further added to the resources
for individuals seeking redress.
Some conflicts, however, are more intractable. Individuals will have a hard time
enforcing their rights where their individual claims are small or where power asymme-
tries vis-à-vis their opponents are pronounced, such as in cases of consumer fraud or
discrimination (Kelemen 2003; Dawson and Muir 2011, 756). In other cases, the interests
that are being infringed are collective and diffuse rather than individual and specific,
such as in environmental conflicts (Eliantonio 2014, 260; Hilson 2017). Litigation in the
public interest has traditionally been absent in most European countries, which makes
the private enforcement of EU laws protecting public goods particularly problematic
(Hofmann forthcoming).
In such situations, too, the Commission is promoting forms of private litigation that
may circumvent some of the shortcomings of de-centralised rights enforcement. These
are mechanisms where legal action is not taken by the individual concerned, but by an
intermediary on her or his behalf, or by a group of citizens acting to on behalf of a public
interest. Essentially, these can be divided into two strands: a system of collective redress
where multiple claimants pool their claims in one legal action against the alleged
offender, and litigation by interest groups who take legal action on behalf of a citizen
or in the public interest. The following sections will outline these in more detail.
Procedures of collective redress have been promoted to overcome situations where a
rights infringement adversely impacts a large group of people, but every single affected
individual might be too powerless to pursue a claim, or each individual claim might be
too minimal to justify spending resources on legal remedies. Pooling these claims would
create a potent opponent to the alleged offender, who, in the absence of a public
prosecutor (such the Commission), would otherwise remain unopposed (Dawson and
Muir 2014, 216–7). Interest groups, on the other hand, can provide the necessary ‘legal
support structure’(Epp 1998) to sustain litigation financially and organisationally that
individuals of lesser means are often lacking (Kelemen 2003,229). Interest groups,
moreover, can pursue public interests much more effectively than individuals. Since
public authorities can often bypass or ‘contain’individual rulings (Conant 2002), interest
JOURNAL OF EUROPEAN INTEGRATION 743
groups can more easily engage in wider legal and political mobilization than individuals
in order to achieve a lasting impact on public policy (Alter and Vargas 2000; Cichowski
2006; Börzel 2006).
Collective redress
The backdrop of the European debate on collective redress has been the most famous
example of this procedure, the US system of ‘class action’. Some of the perceived
excesses of this procedure, in particular the threat of outsized frivolous claims, have
given arguments to opponents of such a system in Europe. Opposition is particular
strong in the business community, since corporations see themselves as potential
targets of such frivolous rights claims (European Commission 2013a). Despite such
opposition, several member states have since the late 1990s introduced at least some
elements of collective redress. Since the early 2000s, the Commission has started
pursuing a harmonisation of relevant procedural rules at the EU level (Kelemen 2011,
76–7). Much of this effort initially focussed on consumer protection. In a 2005 Green
Paper on damage actions in antitrust cases the Commission discussed options of
introducing ‘collective actions’to facilitate claims by consumers against damages
incurred through breaches of EU competition law (European Commission 2005,8–9).
In 2007, what was then DG Health and Consumers commissioned a study on the
‘effectiveness and efficiency of collective redress mechanisms’in EU member states in
order to prepare a debate on legislative action at the EU level (European Commission
2008a). This was followed the same year by a Green Paper on consumer collective
redress, which included an option for a ‘binding EU measure to ensure that a collective
redress judicial mechanism exists in all Member States’(European Commission 2008b,
12). In a concession to its critics, the Commission added that ‘this option should avoid
elements which are said to encourage a litigation culture such as is said to exist in some
non-European countries, such as punitive damages, contingency fees and other ele-
ments’(European Commission 2008b, 12). This position set the frame for subsequent
Commission efforts to promote collective redress beyond consumer policy. In 2011, the
Commission launched a broad consultation on introducing harmonised EU rules on
collective redress procedures which would serve to ‘accomplish the cessation or pre-
vention of unlawful business practices which affect a multitude of claimants or the
compensation for the harm caused by such practices’(European Commission 2011).
Responses to the consultation showed some support for such measures, but highlighted
the ‘risk of abusive litigation’that might result (European Commission 2013a, 7).
From the point of view of proponents of collective redress, the reaction of the
Commission to the public consultation was disappointing (Dawson and Muir 2014,
219). The tangible outcome was a Commission recommendation that suggested com-
mon principles for mechanisms of collective redress ‘that should be complied with’by
the member states within a two year time period (European Commission 2013a, 16).
These common principles were formulated cautiously to appease any concerns about US
class action-style litigation getting a foothold in Europe. Claimants would have to
actively opt into any collective legal action rather than be covered by default, the
principles contain strict limits on third-party funding of litigation and there is a clear
preference for ‘loser pays’rules in the allocation of legal costs (Dawson and Muir 2014,
744 A. HOFMANN
220–1). The fact the Commission chose a soft-law instrument and a restrictive approach
shows the extent of scepticism towards mechanisms of collective redress. Nonetheless,
the use of such procedures appears to be on the rise in some EU member states, causing
some pro-business groups to voice alarm that some of the restrictive procedural rules in
place may be softening (U.S. Chamber Institute for Legal Reform 2017). Moreover, recent
pieces of EU legislation, such as directive 2014/54 facilitating the enforcement of free
movement rights, which in recital 15 (cautiously) recommends the implementation of
collective redress procedures, indicate that at least the language of collective redress will
become a feature also of EU hard law.
Interest groups
The second measure aimed at levelling the playing field in the private enforcement of
EU rights is the promotion of access to courts for interest groups. While interest groups
can support individuals of limited means and pursue cases in the public interest, the
conditions for access to courts for interest groups are in many EU member states
significantly more restrictive than those for individuals, particularly regarding standing
and costs (De Sadeleer, Roller, and Doss 2005; European Union Agency for Fundamental
Rights 2011; Darpö 2013). This is an area that the Commission has started to address.
Early efforts in limited policy areas such as –again –consumer protection date back to
the 1980s (Kelemen 2011, 76), while broader measures aimed at more general access to
justice for interest groups are more recent.
The starting point for the discussion on access to justice for interest groups was a
1978 Commission proposal for a directive in the field of consumer protection which
contained a clause stipulating that member states ‘shall provide persons affected by
misleading or unfair advertising, as well as associations with a legitimate interest in the
matter, with quick, effective and inexpensive facilities for initiating appropriate legal
proceedings’(European Commission 1978, 4, my emphasis). Shortly after the Council
agreed on this proposal (the result was directive 84/450), the Commission started
deliberations ‘whether it was opportune to draft a framework directive introducing a
general right for consumer associations to act in the courts on behalf of the general
interest of consumers’(European Commission 1987, 3) so as to create the EU’sfirst
horizontal provision for access to justice for interest groups. Concerns for national
procedural autonomy, however, prevented agreement, as most member states had no
history of allowing litigation in the public interest, and were very reluctant to do so. A
decade later, the legislative institutions did pass directive 98/27 ‘on injunctions for the
protection of consumers’interests’, which provided one model as to how access to
courts for interest groups can be organised: Member states would nominate organisa-
tions qualified to bring actions for injunctions, with the purpose of compiling an EU-
wide list of organisations whose standing to sue would be mutually recognised.
Organisations apply nationally to be registered and are then screened and officially
approved to assure cross-border legal standing (Micklitz 2006, 462).
Outside of consumer protection, EU legislation contained no similar clauses until the late
1990s. Not least in anticipation of the upcoming enlargement (European Commission 1999,
4), the Commission proposed in 1999 a more far reaching approach to interest group
standing in the field of non-discrimination, which skipped the necessity for prior national
JOURNAL OF EUROPEAN INTEGRATION 745
registration. This time around, the proposal was quickly adopted by the legislative institu-
tions. Both the Racial Equality Directive (Art. 7.2 directive 2000/43) and the Employment
Equality Directive (Art. 9.2 directive 2000/78) contain a clause that states: ‘Member States
shall ensure that associations, organisations or other legal entities, which have, in accor-
dance with the criteria laid down by their national law, a legitimate interest in ensuring that
the provisions of this Directive are complied with, may engage, either on behalf or in
support of the complainant, with his or her approval, in any judicial and/or administrative
procedure provided for the enforcement of obligations under this Directive’. Such associa-
tions include NGOs, trade unions or equality bodies (European Union Agency for
Fundamental Rights 2011, 39). This clause has become a blueprint for subsequent directives.
An identical phrase was later included in three directives on gender equality (Art. 8.3
directive 2004/113, Art. 17.2 directive 2006/54 and Art. 9.2 directive 2010/41). More recently,
two directives aimed at facilitating the enforcement of EU free movement laws (Art. 3.2
directive 2014/54 and Art. 11.3 directive 2015/67) and the revised General Data Protection
Regulation (Art. 80.1 regulation 2016/679) also repeat wording to this extent.
EU legislation regulating interest groups’access to courts in environmental matters
largely implements the ‘Aarhus Convention’that was concluded in 1998 in the frame-
work of the United Nations Economic Commission for Europe (UN/ECE). It was signed
and ratified by the EU and all EU member states. The convention provides for access to
justice in several respects. In a first step, rights to information and participation in
environmental decision-making procedures are enforceable in court. In a second step,
the convention provides for substantive and procedural complaints against national
permitting processes and environmental impact assessments concerning large construc-
tion projects (residential developments, roads, power lines, power plants etc.). Two
directives granting legal standing for interest groups in such cases passed the EU
legislative process with relatively little conflict (directive 2003/4 and directive 2003/35,
respectively). The Commission’s 2003 proposal for a general access to courts for interest
groups in environmental matters, implementing the third step of the convention,
followed the more restrictive approach employed in consumer protection, requiring
prior national registration. Nonetheless, it met with opposition in both the European
Parliament and the Council, and the Commission withdrew it May 2014. Member state
governments in particular had expressed concerns for the integrity of their judicial
systems (European Commission 2013b). In its stead, the Commission has issued a soft
law measure similar to its recommendation on collective redress procedures, in the form
of an ‘interpretative communication’on the obligations of member states arising out of
existing legislation and case-law (European Commission 2017a). In the absence of a
binding legislative measure, case law of the Court of Justice has expansively interpreted
member state obligations flowing from the Aarhus Convention itself, with the effect that
environmental interest groups now face less and less obstacles to legal standing in
national courts (Eliantonio 2016; Hofmann forthcoming).
Finally, a horizontal issue in access to justice for interest groups beyond legal stand-
ing that the Commission has attempted to address is legal aid. A 1993 Green Paper on
consumer protection identified the costs of legal proceedings as an obstacle to private
rights enforcement for individuals and interest groups alike (European Commission
1993, 81), and a 2000 Green Paper on legal aid in civil matters highlighted that ‘Legal
aid could solve the problem that consumers’associations are most likely to face when
746 A. HOFMANN
trying fully to take advantage of the locus standi which the directive gives them, i.e. the
scarcity of financial resources’(European Commission 2000, 7). This carried on into its
2002 proposal for a general legal aid directive, which stated that ‘Legal aid shall be
granted to not-for-profit legal persons based in a Member State where proceedings are
designed to protect legally-recognised general interests and they do not have sufficient
resources to bear the cost of the proceedings’(European Commission 2002b, Art. 15).
However, the Commission was unsuccessful in getting the legislative institutions to
adopt this provision, and seems to have abandoned the project since.
Can EU rights rely on de-centralised enforcement?
As the previous section has shown, the opportunity structure for the de-centralised
enforcement of EU rights, even in difficult conflict constellations, has improved. This
development has been actively supported by the Commission, even if legislation has
stayed behind its ambitions. While the Commission has not been successful in mandat-
ing that member states introduce procedures of collective redress, interest group
standing is now enshrined in legislation concerning areas such as consumer protection,
non-discrimination, free movement and posting of workers, data protection, and envir-
onmental protection. This should be seen in the context of its own reduced engagement
in centralised enforcement. Can private enforcement then serve as a substitute?
Despite the Commission’sefforts, national heterogeneity will remain an obvious
limitation to effective de-centralised rights enforcement. National rules on collective
redress procedures vary widely and harmonising EU legislation is not on the table. The
EU lacks both the resources and the competence to achieve a truly level playing field for
private litigants both across member states and across different types of litigants. Even
in the environmental field, where access to justice has been substantially liberalised,
national variance remains significant (Darpö 2013; Eliantonio 2015). Moreover, the
private enforcement of rights also depends on factors independent of procedural
rules. Interest group litigation is naturally predicated on the existence of such groups
in the first place, and the degree of organisation of European civil societies is very
diverse (Versluis 2007). Groups also vary in their resources, their expertise and their
disposition to use legal action, and not all issues and conflicts will be equally well
covered (Conant et al. 2017). Another aspect that lies largely outside the influence of
EU legislation is the overall performance of national legal systems. The private enforce-
ment of EU law can only work if national legal systems provide effective remedies in
practice. The Commission’s own ‘justice scoreboard’shows stark differences in measures
for judicial efficiency across member states, such as the average length of proceedings
(European Commission 2017c,7–8). Some –predominantly southern European –mem-
ber states’judicial systems take exceedingly long to process claims. This will present
major obstacles to rights enforcement no matter how generous standing rules and how
well equipped and litigious interest groups are.
The advantage of centralised enforcement in this context is evident. The Commission,
for all its discretion over the use of the infringement procedure and the pursuit of its
own policy priorities, shows no sign of systematic bias toward individual member states
(Börzel et al. 2010, 1374). It is comparatively well funded and commands a large and
experienced legal staff. It wins the vast majority of cases that it pursues to the CJEU
JOURNAL OF EUROPEAN INTEGRATION 747
(Börzel, Hofmann, and Panke 2012, 456). In this sense, centralised enforcement can more
reasonably act as a substitute for de-central enforcement where private actors face
formidable obstacles, than the other way around. The Commission is better placed to
level the playing field by enforcing rights on its own than to pursue long shots on
ambitious horizontal access to justice initiatives.
This is not to say that centralised enforcement is inherently preferable. The infringe-
ment procedure is time-consuming. The Commission’s addition of measures towards
informal dispute resolution have added to the length of the process, and have been
extensively criticised as potentially inducing ‘complaint fatigue’(Smith 2010, 156). Some
remedies, such as injunctions to the administrations, cancellation of national decisions,
or damages, are only available in national courts (European Commission 2007, 8). What
this highlights is that the effective enforcement of EU rights is dependent on multiple
channels. While there are obvious drawbacks to the Commission’s infringement proce-
dure, it has a role to play in an encompassing system of rights enforcement across the
EU. The different channels complement one another; they are not mere substitutes. No
single channel can easily be replaced.
Notes
1. Accessible at http://ec.europa.eu/atwork/applying-eu-law/infringements-proceedings/infrin
gement_decisions [last accessed 13.06.2018].
2. The calculations are based on data from the Commission’sannual reports on monitoring the
application of EU law, the Commission’s online infringement database, and EurLex (for
transposition deadlines).
Acknowledgments
I am grateful for the comments I received on earlier versions of this article at the iCourts
symposium ‘The Missing Link? The Fundamental Interplay of Commissions and International
Courts’in Copenhagen (in particular from Shai Dothan) and the WZB workshop ‘Implementation
and Judicial Politics: Conflict and Compliance in the EU Multi-level System’in Berlin (in particular
from Sabine Saurugger), as well as the comments of two anonymous reviewers.
Disclosure statement
No potential conflict of interest was reported by the author.
ORCID
Andreas Hofmann http://orcid.org/0000-0002-2014-6547
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