Strategic litigation plays a crucial role in advancing human rights in the digital age, particularly in cases where data subjects, such as migrants and protection seekers, experience significant power imbalances. In this Article, we consider strategic litigation as part of broader legal mobilization efforts. Although some emerging studies have examined contestation against digital rights and migrant rights separately using legal mobilization frameworks, scholarship on legal mobilization concerning the use of automated systems on migrants and asylum seekers is scarce. This Article aims to address this gap by investigating the extent to which EU law empowers strategic litigants working at the intersection of technology and migration. Through an analysis of five specific cases of contestation and in-depth interviews, we explore how EU data protection law is leveraged to protect the digital rights of migrants and asylum seekers. This analysis takes a socio-legal perspective, analyzing the opportunities presented by EU data protection law and how civil society organizations (CSOs) utilize them in practice. Our findings reveal that the pre-litigation phase is particularly onerous for strategic litigants in this field, requiring a considerable investment of resources and time before even reaching the litigation stage. We illustrate this phase as akin to “climbing a wall,” characterized by numerous hurdles that CSOs face and the strategies they employ to overcome them.

The United States’ free speech regime, as codified in the First Amendment to the United States Constitution, comes with obvious contrasts to Thailand’s ill-famed lèse–majesté law—Section 112 of the Thai Criminal Code—which prohibits defamation or even truthful degradation of the Thai King and Royal Family. Recent scholarship has focused on such differences and has largely depicted the two regimes as diametric opposites. When viewing the First Amendment and Thailand’s lèse–majesté law in temporal isolation, the recent scholarly consensus has significant merit. However, by analyzing the two regimes over time, similarities arise suggesting that both regimes represent each respective country’s attempt to accommodate competing and changing values present within the respective countries.

Internet tech giants are regulated by multiple overlapping yet distinct pieces of EU legislation that establish a range of substantive digital rights for internet users, and varying legal opportunity structures for strategic litigation within their enforcement architecture. My Article focuses on the digital rights and enforcement architecture of the EU’s new Digital Services Act and Digital Markets Act compared to the General Data Protection Regulation. Consideration of key strategic litigation concerning the existing Regulation informs my exploration of opportunities and barriers for strategic litigation under the new Acts. Analysis of these strategic litigation opportunities necessarily encompasses the EU’s new regime for mass claims under the Representative Action Directive, and interaction between internet users’ digital rights and consumer protection laws. I contend that the new Acts comparatively centralize public enforcement power in the European Commission, marginalizing civil society, and effectively precluding most strategic litigation by civil society with regard to public enforcement. Furthermore, the new Acts could increase regulatory fragmentation and the risk of legal incoherence by establishing additional regulatory authorities and competences alongside existing institutions and regimes. I argue that private enforcement strategic litigation against internet tech giants could empower civil society to influence the development of digital rights. Private enforcement strategic litigation could also aid legal coherence as an enforcement mechanism that allows multiple areas of law to be raised and addressed at the same time, rather than in silos. However there are considerable barriers to such litigation, including legal questions such as cross-border jurisdiction and standing, and the resources needed for effective strategic litigation. Overall, concerning legal analysis for strategic litigation, my article demonstrates that we must consider both public and private dimensions of enforcement architecture across multiple area of law, taking into account the different power dynamics of different enforcement mechanisms, to understand the opportunities for strategic litigation to advance digital rights in the internet attention economy.

The preliminary reference procedure is a crucial tool for EU law enforcement. Yet, its usage varies greatly across the Member States. This paper deals with a notable case in which EU justice has not been mobilized: Greece. Until 2023, Greek judges had not made any preliminary references in the migration and asylum fields, despite significant migrant flows. This study investigates why Greece, with its critical migration challenges, became a zero-reference case.

Drawing on empirical and doctrinal research, this paper tests two main hypotheses. The first hypothesis, derived from the “judicial empowerment thesis,” suggests that Greek judges may have been hesitant to refer cases due to political or institutional factors. The second hypothesis, based on scholarship highlighting the role of lawyers and civil society in promoting EU litigation, predicts that the absence of references reflects a lack of activist lawyers, skills, or resources.

The findings challenge common assumptions, revealing that Greek judges are not inherently reluctant to refer cases. Instead, obstacles to access to justice and civil society’s attitudes help understand the absence of references. Going beyond judges, this paper explores how perceptions among migrant supporters, their legal consciousness, and traditional modes of action contribute to the lack of pressure for preliminary references.

This research contributes to understanding the complexities surrounding judicial dialogue and enforcement of EU law. It offers insights into how the interplay of institutional, legal, and social factors shapes legal mobilization and strategic litigation.

In 2020, amid aggressive and inflammatory political discourse and an unprecedented wave of violent attacks against migration Non-Governmental Organizations and their staff, the Greek Government sought to establish a new legal framework for the registration of Non-Governmental Organizations active in the fields of international protection, migration and social inclusion, and their members. This Article aims at providing an overview of the EU-law based litigation brought by Greek Civil Society organizations to challenge the new framework for breaching fundamental rights, and at exploring its effects beyond the Court proceedings. This Article concludes that, counterintuitively, the existence of pending litigation against the Regulation establishing the NGO Registries hampered advocacy on this issue with the European Commission.

This paper poses an important challenge to the growing trend of strategic environmental litigation in the EU: when making strategic choices about bringing, framing, and litigating claims, what becomes more important—being heard through strategically critical procedural choices or being true through ensuring that rights holders and the environment remain at the forefront of decision-making? There are many legal hurdles to bringing environmental claims and it is possible that the voice of the environment and those most adversely affected by its degradation is lost in the strategic legal decision-making. This study uses a small number unstructured scoping interviews with practitioners active in bringing litigation to the CJEU to inductively analyse voice and representation in strategic environmental litigation. This initial research indicates that there are areas which should be further explored. First, all of the practitioners brought up the issue of access to resources. This raises concerns about potential elitism. Second, practitioners highlighted that there are numerous strategic choices made during case selection and framing which could affect how voices are heard. Finally, practitioners felt strongly that admissibility rules have a negative impact on claimants’ voices. Challenges in legal standing and establishing individual harm or direct concern have an enormous impact on what claims are heard and how they are heard.

The climate emergency is unfolding. Efforts to reduced greenhouse gas emissions globally, including the efforts of the European Union and the Member States, are severely insufficient to hold global warming below the 1.5°C temperature limit. In light of this public institutional failure, civil society actors increasingly resort to strategic climate litigation. However, the EU has very restrictive standing requirements for direct actions against general acts. Therefore, most strategic climate litigation is brought to national courts. In 2023 and 2024, national judges have in several cases allowed defendant states to use EU law as a shield against the litigants’ demands to declare national climate targets and policies insufficient. This Article argues that in light of the fact that EU climate policy is inadequate and nearly impossible to challenge, it is highly problematic when national judges accept EU law to be an obstacle to (full) judicial review. First, EU law itself is not an obstacle to judicial review of national climate policy. Second, the European Convention on Human Rights, read in light of KlimaSeniorinnen, imposes higher requirements on Member States than EU law. Third, the European Court of Human Rights would not accept the “EU law as a shield” argument.

This Article inquires into the aftermath of judgments by the CJEU under the preliminary ruling procedure under article 267 TFEU in cases of strategic litigation. As the principal objective of strategic litigants is to effectively achieve broader societal, political, economic, or legal change, the afterlife of a judgment is crucial for them. While excellent scholarship exists on strategic litigation in EU law, much remains unclear on what happens to a case after the Court of Justice of the EU (CJEU) has given its judgment. Does the referring court and other national courts faithfully comply with the judgment of the CJEU? Do governments implement the ruling? This Article takes the decision of the CJEU in Landespolizeidirektion Steiermark, which concerns the reintroduction of internal border controls, as case study to inquire into the different factors that affect the implementation of a preliminary ruling that is the outcome of strategic litigation. The main argument in this Article is that the implementation of preliminary rulings is determined by the interplay between three different factors: The role of strategic litigants to initiate follow-up litigation, the receptivity of national courts to comply with a preliminary ruling, and the European Commission’s willingness to enforce a preliminary ruling.

At a time when the European Union and its Member States are constantly adopting measures to combat serious crime and terrorism, particularly through the prism of data protection rules, the CJEU is acting as a bulwark by imposing compliance with strict conditions, thereby encroaching on national rules of criminal procedure, which are initially the responsibility of the Member States. In this contribution, we will examine how and on what basis the Ligue des Droits Humains was able to get the CJEU to rule on the Passenger Name Records Directive, and to what extent this action was indeed “strategic.”