Strategic litigation before the European Committee of Social Rights: Fit for purpose?
| Author | Nikolaos A. Papadopoulos |
| DOI | http://doi.org/10.1177/09240519221131401 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | Articles |
Strategic litigation before the
European Committee of Social
Rights: Fit for purpose?
Nikolaos A. Papadopoulos
PhD Researcher, Department of International and European Law, Faculty of Law,
Maastricht University, Bouillonstraat 1-3 Maastricht, Limburg 6211 LH, Netherlands
Abstract
This article examines the structural elements of the Collective Complaints Procedure, seen as an
avenue of socio-economic rights strategic litigation, that potentially enable or impede NGOs and
trade unions in addressing violations of the European Social Charter before the European
Committee of Social Rights. The findings show that the procedure is a unique form of collective
redress in the human rights system, with exceptional structural characteristics, which render it an
avenue of strategic litigation by its nature. Its main strength lies in that it enables the participation
of organisations and vulnerable groups of people that are denied access in political or judicial fora,
either at the domestic or supranational level, to deliberate on social policy issues and put pressure
on States to address social issues on the basis of economic and social rights.
Keywords
Economic and social rights, strategic litigation, legal mobilisation, European Committee of Social
Rights, European Social Charter, Collective Complaints Procedure, international monitoring,
NGOs, trade unions
1. INTRODUCTION
Strategic litigation is essentially law-based advocacy and mobilisation intended to secure judicial or
quasi-judicial rulings to clarify, expand, or enforce rights for persons beyond the individuals named
Corresponding author:
Nikolaos A. Papadopoulos, PhD Researcher, Department of International and European Law, Faculty of Law, Maastricht
University, Bouillonstraat 1-3 Maastricht, Limburg 6211 LH, Netherlands.
Email: nikos.papadopoulos@maastrichtuniversity.nl
Article
Netherlands Quarterly of Human Rights
2022, Vol. 40(4) 379–398
© The Author(s) 2022
Article reuse guidelines:
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DOI: 10.1177/09240519221131401
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in the case at hand.
1
Its underlying objective is to influence progressive change in relation to domes-
tic or international laws, policies, or practices.
2
Nonetheless, strategic litigation may be used to
pursue broader goals than intra-legal objectives, such as galvanising popular attention, changing
the terms of public debate on an issue, or raising social awareness.
Recently, there has been an increased interest in the study of human rights strategic litigation
before courts and treaty bodies in Europe by minority and other vulnerable groups, represented
by NGOs and other organisations.
3
The focus has been, predominantly, on examining the oppor-
tunities that exist to influence government policies when strategically litigating before the Court
of Justice of the EU (CJEU) and the European Court of Human Rights (ECtHR).
4
Through the
development of the supremacy and the direct effect doctrines, the CJEU has enabled vulnerable
and minority groups to pursue their cases before the Luxembourg Court.
5
The ECtHR, on its
side, has served as a locus of mobilisation by minorities, immigrants and asylum seekers
6
However,
critics have argued that only actors that have access to domestic courts and sufficient resources
are capable of mobilising EU law.
7
Through the preliminary reference procedure, domestic
judges have the discretion to refer the case at hand to the CJEU, but most of the EU law-related
claims are settled in domestic courts.
8
On the other hand, the ECtHR’s victimhood and exhaustion
of domestic remedies requirements for standing have been criticised as being structural barriers for
NGOs and other collective actors.
9
Several scholars have criticised the heavy focus of the human rights strategic litigation literature
on campaigns for civil and political rights at the expense of socio-economic rights.
10
In fact, socio-
economic rights are now considered the ‘new frontier’in human rights advocacy,
11
while various
commentators have asserted that litigation before domestic and international courts and treaty
bodies is an important strategic tool for individual and collective actors to ensure the realisation
1. Michael Ramsden and Kris Gledhill, ‘Defining Strategic Litigation’(2019) 38 Civil Justice Quarterly 407, 417.
2. James A. Goldston, ‘Public Interest Litigation in Centr al and Eastern Europe: Roots, Prospects, and Challenges’
(2006) 28 Human Rights Quarterly 492; Tawanda Hondora, ‘Civil Society Organisations’Role in the
Development of International Law through Strategic Litigation in Challenging Times’(2018) 25 Australian
International Law Journal 115.
3. See, for example, Dilek Kurban, Limits of Supranational Justice: The European Court of Human Rights and Turkey’s
Kurdish Conflict (Cambridge University Press 2020).
4. See, for example, Dia Anagnostou (ed), Rights and Courts in Pursuit of Social Change: Legal Mobilisation in the
Multi-Level European System (Hart Publishing 2014).
5. Lisa Conant, Justice Contained: Law and Politics in the European Union (Cornell University Press 2002); Rachel
A. Cichowski, The European Court and Civil Society: Litigation, Mobilization, and Governance (Cambridge
University Press 2007).
6. Anagnostou (n 4).
7. Tanja Börzel, ‘Participation through Law Enforcement: The Case of the European Union’(2006) 39 Comparative
Political Studies 128, 147.
8. Direct review of EU measures by individuals before the CJEU is possible through actions for annulment or liability
actions, set out in Articles 263 and 340 TFEU respectively, but the rules regulating them are very strict. See, for
example, Alicia Hinarejos, ‘Judicial Review’in Robert Schütze and Takis Tridimas (eds), Oxford Principles Of
European Union Law: The European Union Legal Order: Volume I (Oxford University Press 2018).
9. Dia Anagnostou,‘Law and Rights’Claiming on behalf of Minorities in the Multi-level European System’in Anagnostou
(n 4) 10.
10. See, for example, Sandra R. Levitsky, ‘Law and Social Movements’in Austin Sarat and Patricia Ewick (eds), The
Handbook of Law and Society (John Wiley & Sons 2015) 387.
11. Conor Gearty and Virginia Mantouvalou, Debating Social Rights (Hart Publishing 2010).
380 Netherlands Quarterly of Human Rights 40(4)
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