So it is no secret that Europe is lately not doing very well on the innovation, technology and economic fields. This post brings an interesting perspective, arguing that EU already possess most of the laws that would mandate it to be more pro-progress, it just does not exercise them or does not exercise them well. It then follows that legal action could be taken to require these laws and regulations are better respected. I am not a lawyer, and do not know the system, but it sounds interesting enough to me to wish for a philanthropically funded Progress Studies EU Movement. If established, I can imagine its staff being very busy.
Over the last few decades, progressive (Leftist) NGOs have mastered the art of strategic litigation as a democratic participation tool. They have used it to worsen environmental standards, digital rights, and consumer protection. They have built sophisticated legal networks that know how to spot a test case and how to bring it all the way to CJEU in Luxembourg. Market liberal think tanks, on the other hand, have stayed in the realm of policy.
I personally would not use the word ‘worsen’ here, but otherwise the remark rings true. It sees that there is good evidence that in Europe we know how to use law, and bottom-up action, to shape policy.
What a Libertarian Litigation Agenda Could Look Like: So what would a libertarian litigation agenda actually look like? One obvious target is licensing and local barriers. Across Europe, local governments use zoning laws and licensing requirements to protect incumbents. We see this with ride-hailing licenses in Spain, regional caps on businesses in Italy, and retail zoning in France. These are classic examples of rent seeking. A strategic litigation campaign would argue that these restrictions constitute a disproportionate restriction on the freedom of establishment under Articles 49 and 56 TFEU. The argument is simple: these rules do not serve a valid public interest; they serve the private interest of the taxi lobby or the existing retail chains.
Another target is the “gold plating” which occurs when member states transpose an EU directive into national law but add extra requirements that go beyond what the directive requires. This creates unnecessary burdens for businesses. Future work should demonstrate how different member states transpose the same directives in light of liberalization. For example, the Planning Act in Ireland and the Ley 21/2013 in Spain differ materially in how they handle environmental assessments; while both being EU Member States. These differences can distort the market and are often challengeable. State aid is yet another fertile ground. Article 107 TFEU unequivocally prohibits state aid that distorts competition. This is a powerful tool to attack protectionist subsidies that crowd out new private entrants, like startups. If a government is propping up a failing national airline or giving tax breaks to a specific industry, that is a violation of EU law. A libertarian litigation strategy would aggressively challenge these subsidies.
And much more pessimistic in the comments:
[…] the extent to which legal principles are twisted beyond recognition to serve particular goals (effet utile, direct application of regulations between private parties) has robbed me of any belief that ecj judges will turn pro market in our lifetime.