Towards an EU law doctrine on the exercise of discretion in national courts? The Member States’ self-imposed limits on national procedural autonomy

Abstract

While it is widely recognized that national procedural law must satisfy the minimum requirements of effectiveness and equivalence, the way procedural law is regulated is generally considered a matter of Member State autonomy. However, this article demonstrates that the ECJ tends to award national legislatures greater autonomy in procedural matters than it does national courts. The effect is that the framing of national rules, such as the choice between mandatory regulation and conferral of discretion, does matter in EU law. Relying on the principle of sincere cooperation, the Court has on several occasions held that the existence of a discretion or a power on the part of the national court entails a duty to exercise that discretion or power in the way most conducive to the effective enforcement of EU law, even though the rule providing for the discretion is not in itself contrary to EU law. Discretion in national law is thereby used to enhance the impact of EU law. By increasing discretionary elements in procedural rules, national legislatures may thus unwittingly strengthen the impact of EU law in the Member States.