Governmental Litigation as a Form of Legal Activism

Abstract

This chapter presents legal activism as a second important motivation for governments to subject supranational acts to judicial review. Legal activism is understood as governments’ attempt to strategically use litigation as an instrument to provoke judicial law-making and thereby get the Court to develop the set of EU rules according to the litigant government’s preferences. To support this argument, it presents a comparative case study on decisions made by the German government on whether or not to initiate an action for annulment against two negative state aid decisions adopted by the Commission. The chapter shows that the German government only litigated against the supranational administrative act that had the potential to provoke judicial law-making since it strongly relied on an indeterminate legal concept.