Political Trust and Bottom-up Litigation in the EU

With the intensification of EU integration, the probability of conflicts between member states and the Commission increases. Cases of national resistance to supranational enforcement actions have gained importance, as shown by the increase in member states’ use of litigation against the Commission’s measures via annulment actions. What is, however, still puzzling, is the conditions under which member state governments decide to litigate against the Commission. This paper focusses on the role of political trust as an incentive for governments to turn to the CJEU to challenge EU measures. Bottom-up litigation against an EU measure is a way, for national governments, to signal loyalty to domestic actors that would be adversely affected by the EU measure. Based on a combination of quantitative and qualitative analysis of a series of recent cases of annulment actions initiated by the governments against the Commission in Spain and Germany, we find three types of configurations in which governments litigate to maximise political trust. Governments use litigation to maximise the political trust 1) from their constituency in highly salient issues, 2) from subnational governments in federal or regionalized countries, 3) from companies in cases of economic partnership between the government and the firm. In terms of contributions, the paper demonstrates the importance of political trust as a motivation for bottom-up litigation in the EU, identifies three types of political trust underlying litigation, as well as the conditions under which each type shall manifest.