Strategic litigation

If you would like to read up on the theory and application of strategic litigation, we recommend the English publication ‘Strategic litigation of race discrimination in Europe: from principle to practice’.

BUG distinguishes between regular and strategic litigation. In regular litigation, a situation is presented in court in order to help guarantee the rights of the individual victim.

However, while the initial step in strategic litigation is also to clarify an individual lawsuit in court, it is just as important to protect the rights of a whole group which is in a similar or in a comparable position – and therefore to create precedents. This is particularly necessary in the anti-discrimination field, since the General Equal Treatment Act has only been in effect in Germany since 2006 and thus, only a very small number of lawsuits have been brought up to now. There are so far only limited precedents and little legal certainty. An increasing number of lawsuits in the courts will clarify the different legal concepts (burden of proof, direct discrimination, HIV as a chronic disease within the definition of disability, etc.) on the basis of lawsuits strategically presented to create precedents. The courts will then evaluate and decide other lawsuits on the basis of these precedents. By this means, new legal practices can be established. Moreover, lawyers can then use the newly developed lines of argument in subsequent cases.

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