It’s Not Always about Winning: Domestic Politics and Legal Success in EU Annulment Litigation

Abstract: Why do EU Member State governments have such varying degrees of success when they initiate annulment actions against the European Commission? Usually litigant success is associated with arguments about judicial constraint or litigants' capacity. This article sheds light on domestic politics as an additional factor that can affect governments' success record in court.
It is argued that governmental annulment actions are often part of a two-level game in which the value of the legal conflict for a national government can be independent of, or even negatively related to, legal success in court as governments may reap immediate benefits from communicating the initiation of annulment actions to voters. In addition, negative rulings can be used as normative levers in domestic reform processes. The statistical analysis indicates that the latter argument systematically affects governments' success records.