By virtue of its superiority and direct effect, EU law vests its subjects with a wide array of rights that citizens can use against their national authorities. Direct effect, however, does not mean that rights are always directly effective. Rights have to be activated – claimed – in face of alleged infringements, and not every individual with a valid claim can muster the necessary resources to activate the legal system and sustain a challenge. Rights can be ineffectual where private interest are too powerless to claim them, or where nobody has standing to enforce a public interest. One way of addressing this gap is to notify the European Commission of the perceived lack of effectiveness of certain rights. Many rights claims based on EU law are therefore addressed to the European Commission in the hope that it will employ the infringement procedure. There are, however, serious drawbacks to this procedure when it comes to effectively safeguarding rights. The procedure is time-consuming, and many important measures of judicial protection like injunctions or damages are only available at the national level. The Commission therefore has only limited possibilities in ensuring effective rights protection, and gaps persists.
Drawing on national and European litigation patterns, this paper investigates whether such gaps cluster around certain issue areas. Public interests such as environmental protection for example have a comparatively difficult time getting to courts. At the same time, the Commission is undertaking efforts to increase access to justice at the national level, both for individuals and for interest groups. The paper discusses in how far the measures adopted actually serve to address these gaps.
