Chapter 3 analyses the influence of private foundations on the outputs of the ECtHR and the CJEU. This influence includes the tendency for both courts to deliver judgments on cases taken by the OSJI and the NGOs funded by private foundations and to rely in their judgments on documents and reports made by private foundations and the NGOs. The most convenient way for private foundations to bring about social change and to have substantial impacts on national policies is to take significant cases to the European Courts and to obtain pilot judgments, judgments delivered by the ECtHR under Article 46 ECHR and landmark judgments rendered by the CJEU. We analyse and detail the execution of such judgments obtained over fifteen years by NGOs and private foundations. The influence of private foundations and NGOs also includes their increased involvement in the monitoring of the execution of judgments by member states. Furthermore, a private organisation (Judgment Watch) has recently been created and funded by a private foundation, the OSF, to support, monitor and promote the implementation of the most significant ECtHR judgments litigated by the OSJI and NGOs.

We analyse the creeping private power on the inputs of the European Courts: the growing participation of private donors in the litigation processes that they undertake, fund and support. We present the main private litigation teams, including that created by the Open Society Foundations and the sources of their funding, and we analyse the litigation documents brought by private foundations and NGOs backed by private donors over twenty years (before and after the economic downturn). We show that litigation activities undertaken by private foundations and those carried out by the most important NGOs before the European Courts are fully funded and supported by a limited roster of foreign private donors. In their litigation activities, NGOs are not only financed by private foundations but also by a mixture of public-private actors. The funding of inputs is indeed backed by certain member states (including the Netherlands, the United Kingdom, Sweden, Norway and Switzerland), which participate in this co-funding through their embassies. Private funding of litigation has an impact not only on the inputs but also on the outputs of the ECtHR and the CJEU.

The first chapter focuses on the general influence of foreign private money at the European and national judicial level. Drawing on the sparse literature on this issue, this chapter addresses why and how foreign private donors are interested in investing in litigation before the European human rights justice system. The evolution of the ECtHR into a powerful fundamental rights tribunal has made it much more attractive to private donors interested in human rights. More generally, both the CJEU and the ECtHR have established an internal structural incentive to litigate, in that repeated and well-funded litigators tend to come out ahead, not only because of the development of new structures and new powers but also because of the creation of legal precedent. This attractiveness is reinforced through the increasing role played by NGOs in litigation and third party interventions before both Courts. In addition, austerity policies have reinforced the influence of donors over NGOs. In this regard, less public funding for NGOs translates into more room for private donors to turn funding into influence.

We argue that the main objective pursued by private foundations through direct litigation and their funding of NGOs is to spur social changes connected with their own interests. Chapter 7 sheds light on the relationships between the litigation undertaken and funded by foreign private foundations and their economic and political interests. The economic interests of these foundations can be identified through the identities and CVs of their Board members and through the economic investments made by their heads. A number of judgments litigated and delivered by the ECtHR that favour and promote free market and free trade are also analysed. Litigation documents and archives collected in 2016 at the Rockefeller Foundation archives in New York and at the OSF archives in Budapest are used to demonstrate the international and liberal perspective endorsed by private foundations and to show how the litigation and economic interests pursued by these foundations, and even by several European countries, coincide and intersect.

This chapter discusses the currency union’s original set-up. It first discusses the history of European monetary integration, distinguishing between two sorts of motives: one economic, the other political. From the establishment of the European Economic Community up until the Treaty of Maastricht, both have been important drivers of monetary integration. The chapter subsequently turns to the original legal set-up of the euro, in particular its internal policy dimension. The economic and political forces behind the currency union’s creation also exercised great influence on its set-up, which came to institutionalise a stability paradigm. Characteristic of this paradigm was that it granted overriding importance to price stability as a policy goal and argued for a privileged position of the central bank in achieving this. The chapter shows how its influence was most notably evident at the level of aims and principles and in the constitutional position of the European Central Bank. Yet it also shaped the single currency’s economic foundations, in particular, the Union’s limited competences in this area and its focus on fiscal prudence. It even informed the rules governing accession.

This chapter discusses the initiation of the euro’s transformation and the shift from negative to positive solidarity, in the form of financial assistance, that it caused. Its origin lies in a historical meeting of the heads of state or government on 11 February 2010. There, the leaders initiated a change in the Founding Contract by jointly committing themselves to safeguard the currency union’s financial stability. The chapter subsequently focuses on the positive solidarity displayed towards distressed member states through various temporary rescue funds. This not only created difficulties for political leaders back home, politically and legally, it also put great strain on the single currency’s legal set-up that still reflected a stability conception from the past. The third part of the chapter therefore discusses how member states tried to take away this strain by incorporating the shift in solidarity in Union law through the creation of Article 136(3) TFEU, allowing member states in the currency union to establish a permanent rescue mechanism. The chapter traces the process and considerations behind both this amendment and the establishment of the mechanism it enabled.