skönsmässigt beslutsfattande i processrättsliga frågor

trasted to mandatory rules. Its aim is to examine the (potential) tension
between the national and Union developments and if possible suggest
ways of relieving this tension.
The thesis argues that EU law influence is liable to hamper the Swedish
reforms in fulfilling their purpose and that their effect may instead be
to further the impact of substantive EU law in Swedish courts. It also
argues that the flexibility-driven reforms have structural effects on the
allocation of normative powers between Member State and Union and
between the legislative power and the judiciary, which the legislator so far
has failed to take into account. It forwards these arguments by answering
three research questions: Firstly, it asks what constitutes a discretionary
rule, how, from a linguistic point of view, such rules are framed and why
the Swedish legislator chooses to regulate civil procedure through discretionary
rather than mandatory rules. Secondly, it asks how the exercise
of discretion in Swedish courts, as well as the legislative power to introduce
discretionary procedural rules, is affected by Union law, especially
as interpreted and developed by the CJEU. Thirdly, it asks if and how
increased elements of judicial discretion bring about a redistribution of
normative control over the procedure before Swedish civil courts.
The definition and purpose of discretion in civil procedure
For the context of civil procedure, discretionary rules are defined as rules
addressed to the court and concerning an action to be taken (or not taken)
by it, where the rule leaves the court a discretion to choose between two
or more lawful courses of action, and where the court’s choice is determinant
for the continued course of the procedure. Discretionary rules
are thereby distinguished from rules addressed to the parties (binding or
non-binding) as well as from mandatory rules for the court.
The thesis distinguishes between two subcategories of discretionary
rules, which can be termed classic discretionary and interpretive discretionary
rules respectively. Rules belonging to the former category typically
state that subject to the fulfillment of certain criteria, the court may
take (or omit) a certain action. Rules in the latter category are characterized
by broadly-framed or purposefully vague conditions which require
judges to exercise discretion in establishing whether conditions for taking
a certain action are at all fulfilled. However, whether or not a rule confers
discretion upon the courts is not considered a matter of mere lexical
interpretation. Thus, the definition of “discretionary rules” also includes
260