Constitutional Complaints in EU Perspective: From Legal to Political Mobilization

Many European countries feature the instrument of a constitutional complaint. Constitutional complaints offer access to constitutional review to private citizens that can claim an infringement of their constitutionally guaranteed rights by the State. However, constitutional complaints are not simply legal remedies for individual grievances. Under certain circumstances, they are transformed into instruments of (collective) legal mobilization against policy decisions. This paper considers access to the constitutional bench as a powerful, yet demanding part of the political opportunity structure that provides incentives for public interest groups and social movement organizations (SMOs) to engage in legal mobilization against the implementation of EU policy by the Member State governments. The paper thus addresses the following questions: Under what conditions are public interest groups involved in bringing litigation that challenges acts of governments before constitutional courts? What impact does constitutional litigation have for the relationship between Union law and national constitutional law? The paper builds on the premise that legal mobilization before constitutional courts is motivated by effectuating a substantial revision or even abandonment of policy decisions. However, besides realizing policy preferences, taking a matter to the constitutional court is also considered to be a strategy conducive to the erection of a support structure for longer-term struggles for policy change. Thus, a side-effect of legal mobilization is the political mobilization associated with an expansion of the scope of conflict, generating media awareness, the mobilization of financial resources and personal commitment, the organization of political participation, garnering public support, and attempts to achieve long-term political realignment. The paper explores both the conditions, the underlying processes and effects of legal mobilization by focusing on three cases associated with core state powers: the Data Retention Directive, the European Arrest Warrant, and EU Treaty changes. Comparative case studies of legal mobilization in Austria, the Czech Republic, Germany and Spain serve to analyze the effect of meso-level factors associated with opportunity structure, such as standing rules and scope of the complaint. To understand the processes of legal and political mobilization, the paper draws on insights gleaned from interviews with interest group representatives and legal experts.