Explaining the Success of Litigation Strategies in the Schrems Cases A Framework for Analysis

Abstract

This article seeks to explain the success of litigation strategies pursued by interest groups defending a public interest (hereafter public interest groups). We focus on the sub-field of data transfer between the European Union and the United States, where the Court of Justice of the European Union (CJEU), through rulings indirectly triggered by such groups, has invalidated a Commission’s decision relating to EU-US arrangements (Safe Harbour in 2015, then Privacy Shield in 2020).

To evaluate the likelihood of litigation successes, we propose an analytical model based on five elements derived from the new institutionalist theory: actors and instruments (rational choice institutionalism), processes (historical institutionalism), context and legitimacy (sociological institutionalism). Although we cannot prove that all five elements are necessary conditions for success, we argue that litigation successes in the cases we studied (the Schrems rulings) were very likely because all five elements were combined, even if the relative weight of each element slightly varied.