practical application of the Directive (cf. Heinelt, Malek, Staeck, Töller, 2001). Nevertheless,
legal action continues, and albeit scatchy slowly moves Germany toward a more effective
implementation of the EIA Directive.
To sum up, while domestic litigation has played a prominent, albeit not always successful
role in the attempt of German individuals, groups and firms to enforce the AI and EIA Directives
in Germany, Spanish citizens and environmental organizations have hardly ever made use of their
increased opportunities for participation through EU law enforcement. The comparative case
study reveals an important dilemma of the EU’s decentralized enforcement mechanisms. While
litigation before national courts provides an important lever of participation through EU law
enforcement, it is mostly the (German) “haves” rather than the (Spanish) “have nots” that have
been able to make use of these legal opportunities. This is particularly problematic in those
member states, where non-compliance abounds while individuals and groups have only limited
resources to push their EU rights against the resistance of public authorities. Figure 3 contains
member state non-compliance rates in the area of EU environmental law between 1979 and 1999.
As the distribution of infringement proceedings across the member states indicates, non-
compliance with EU environmental law is most pronounced in the southern member states (Italy,
Greece, Portugal, Spain). At the same time, their closed domestic opportunity structures seriously
constrain the capacity of societal actors to mobilize in favour of compliance. While the need for
enforcement in the southern member states is higher than in the North, the prospects of citizens
and groups litigating their governments into compliance are lower.
-------- Figure 3 about here --------
C
ONCLUSION
: C
OURTS
AND
THE
D
EMOCRATIC
L
EGITIMACY
OF
I
NTERNATIONAL
L
AW
The decentralized enforcement of EU Law through litigation before national courts offers
an important lesson for students interested in the transformative effects of expanded judicial
power on democracy. The EU’s legal compliance system gives significant review power and
jurisdiction to the European Commission and the ECJ over more the thousands of formal,
sufficiently precise and judicially enforceable norms and rules that make up the body of EU Law.
Moreover, the supremacy and the direct effect of EU Law provide citizens and groups with the
opportunity to litigate in order to get their EU rights enforced against the resistance of their
governments. Thus, the EU’s legal compliance system has led to increased opportunities for
participation through law enforcement as predicted by hypotheses 1 and 2 of the introduction to
19
Convention