Chapter 5 analyses the effects of the growing influence of private interests on the orientation of European case law. The cases in which the OSJI and NGOs (backed up by private foundations) intervene are notably selected for their potential prioritisation by the Courts on the grounds of the right to life, the right to dignity, and the right to freedom and legal detention; for their potential to affect the Convention’s effectiveness; or because they raise questions of general interest and lead to pilot/leading judgments (which are considered by the ECtHR as an absolute priority in its own policy). Cases are also selected for their political and legal impacts on specific areas and countries. The first part of Chapter 5 sheds light on the concentration of applications lodged by private foundations and NGOs on specific policy areas and specific countries, including Eastern European nationalist regimes and Russia. The second part of the chapter deals with countries including the United Kingdom, Ireland, Germany and France and cases (such as austerity cases) that are neglected, not captured or even completely ignored by private foundations and NGOs.

Through repeated litigation and advocacy, private foundations and some NGOs funded by them are influencing not only the actual content of each individual decision of the ECtHR, but also the overall shape of the case law of the Strasbourg Court through inputs (applications brought before the ECtHR and evidence used by the Court) and outputs (active participation in the execution of ECtHR judgments). While some US socio-legal scholars have assumed that NGOs are captured by their private funders (Vincent 2019) in their litigation efforts before the US Supreme Court, we have demonstrated that private foundations (in particular the OSF) do not only finance some litigating NGOs but also take cases to the European Courts directly. In doing so, they partly capture the Courts’ jurisprudence by orienting them towards highly political cases (territories and political topics) and the defence of the rights of certain minorities (such as Muslims, Roma, migrants, LGTB persons, prisoners, terrorists, human rights activists and political opponents supported by some private foundations), especially in Eastern countries and in Russia. In particular, repeated litigation plus public policy advocacy by NGOs specialising in litigation before the ECtHR and the CJEU shape the way in which the conflicts underlying cases are selected, discussed and resolved.

Chapter 4 sheds light on the last significant indicator of the growing capture by private foundations of the European justice system as private foundations are increasingly involved in the reform and structure of the European Courts thanks to advocacy efforts. The new constitutional designs of the European Courts and the development of a management approach applied by the Courts and partly brought about by the litigation activities of private foundations could enhance the influence of those foundations on the Courts' jurisprudence (and on the execution of their judgments), since such management techniques tend to benefit professional, repetitive and well-funded litigants. In this context, private foundations could be encouraged either to engage or to reinforce their involvement in litigation before the European Courts. They could be also motivated to increase their voluntary financial contributions to the EU and CoE organisations if they receive more influence over them in return. As evidence of this trend, we draw on internal and advocacy documents drafted by the European Courts, NGOs and private foundations concerning the successive reforms of the European human rights justice system.

This book aims to contribute to the analysis of European human rights justice, and in particular of the case law of the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), from what seems to me an unexplored perspective. In a nutshell, I not only consider the case law of the ECtHR and the CJEU as a given and fixed output but also pay attention to the role played by inputs in the form of petitions brought before the Strasbourg and Luxembourg judges by repeated players (and the litigation strategies that underpin them) in making the case law of the ECtHR and the CJEU.

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.