Rowie Stolk on strategic litigation by interest groups
The Dutch legal system perhaps appears at first sight not to be very suited for strategic litigation by interest groups. But judgments such as SyRI and Urgenda show that when an interest group does fulfil all the conditions, anything can happen in court.
This is written by Rowie Stolk, PhD candidate at the Department of Constitutional and Administrative Law, and Caelesta Braun, Associate Professor at the Institute of Public Administration in their article (in Dutch) Het fenomeen strategisch procederende belangenorganisaties in drie vragen (the phenomenon of strategic litigation by interest groups in three questions) which is mainly based on their research project ‘See you in court. On the prevalence and implications of public interest litigation’.
According to Braun and Stolk, the Dutch legal system for a number of reasons is perhaps not suited for interest groups to start strategic litigation as a way of achieving social, political or legal changes. Administrative law proceedings are only admissible in the case of individual implementation decrees, such as a licence, administrative fine or subsidy. And it is not possible to litigate directly against general rules and policy, unless individual interests could be affected that are protected by an interest group.
That said, this doesn’t mean that interests groups can never access the administrative courts. Foundations and associations are able to initiate proceedings against individual decisions, if these directly affect the collective or general interest they represent, which is often the case in matters concerning the environment. In the area of social security and immigration, however, individual decisions normally only affect the addressee, so that interest groups often have no case.
Braun and Stolk conclude that although strategic litigation is not yet a well-developed and regularly deployed instrument of influence, it is developing to become a systemic and politically strategic phenomenon. It is time to properly consider what type of interests can and must be represented in the courts, Braun and Stolk say in Mr. Online.