Empirical Legal Studies

Legitimacy and efficacy of litigating interest groups in public law

Interest groups play an important role in democratic society.

By aggregating, articulating and representing interests, interest groups can form an (essential) link between citizens, society and politics. In their strategies for supra-individual advocacy, interest groups are not limited to the political arena, but the legal arena is also gaining popularity. In 2013, for example, the climate organisation Urgenda sued the Dutch State on behalf of current and future generations, alleging that it was doing too little to combat climate change. This was followed in 2019 by the groundbreaking Supreme Court ruling, according to which the Dutch State must reduce greenhouse gas emissions by 25% by 2020 compared to 1990.2 This legal success not only inspired climate organisations worldwide to start similar proceedings, but also put the spotlight on the courts within the Netherlands as an ally in climate activism.
It was not only the climate case that illustrated the potential of the judicial process as a means of achieving societal, social or political change. If you are looking for more examples, you only have to open the newspaper. Advocacy groups have been the driving force behind many of the most high-profile lawsuits against the Dutch government in recent years. Illustrative are the nitrogen cases of environmental organisations such as Mobilisation for the Environment (MOB), the court case of the Dutch Council for Refugees about the quality of the refugee reception in Ter Apel, and the proceedings of human rights organisations such as the NJCM and Privacy First about the (in)admissibility of risk profiling in implementation practice and with the Marechaussee. Even during the corona crisis, interest groups frequently managed to find the judicial process. For example, industry organizations such as Koninklijke Horeca Nederland (KHN) litigated about the corona (support) measures and Virus Truth set its sights on the curfew.
Such proceedings raise all kinds of legal questions and tensions, for example around the role of the judge, the relationships within the triad and the applicable (often human rights) framework. However, the role of the interest groups that initiate these proceedings remains underexposed in the Dutch legal debate. Who are these organisations, what are their strategies, what interests do they represent, how much access do they have to justice and under what conditions, how should their representativeness be assessed, and what can they achieve in court? In order to arrive at a normative assessment framework for the legitimacy of litigating interest groups and insight into the effectiveness of their procedures, more insight is required into the phenomenon of litigating interest groups, which requires a broader, interdisciplinary perspective and a combination of legal and empirical research methods.