skönsmässigt beslutsfattande i processrättsliga frågor

in their competence. The implications of this principle for the exercise of
discretion in national courts have been the subject of the CJEU’s attention
in several cases.
In its judgment in C-430/93 and C-431/93 van Schijndel the CJEU
held that the mere fact that national courts, pursuant to national law,
were allowed to rely on points of law not advanced by the parties meant
that they had an obligation to raise such points ex officio in EU law cases.
The discretionary nature of the national rule was thus quite decisive for
the Court’s ruling, the effect of which was transform the discretion of the
national court into an obligation. This reasoning, which has been confirmed
in a series of later cases, 5 appears to have been based on the principle
of loyalty (Art. 4(3) TEU), although some later case law, notably the
Asturcom ruling, casts some doubt on this interpretation. A similar reasoning,
explicitly based on inter alia Article 4(3) TEU, was subsequently
adopted by the British House of Lords in a case concerning exercise of
judicial discretion under the scope of the EIA directive.
The principle of loyalty was also cited in C-453/00 Kühne & Heitz,
where the CJEU held that a national court was obliged to review an
administrative decision that had acquired the force of res judicata, since
the court had the power to do so under national law. However, in Kühne
& Heitz the existence of that power was not, as it was in van Schijndel,
in itself sufficient to give rise to the obligation. Instead the Court ruled
that three additional criteria needed to be fulfilled in order for EU law to
demand the reopening of the case.
A national discretionary rule, this time concerning the discretion to
extend a time limit for bringing a claim, was also discussed in Uniplex.
The approach of the CJEU was however yet another. The Court held that
the national court was obliged to extend the time limit if, but only if, such
extension was necessary to avoid a breach of EU law. If the observance of
Union law could be achieved in other ways, the discretion thus remained
intact. The principle of loyalty was not mentioned. The position of the
CJEU in Uniplex instead closely resembles that taken by Advocate General
Jacobs, but rejected by the Court itself, in van Schijndel.
In the abstract, these lines of case law show three different approaches
to national, discretionary rules: unconditional transformation into obligation
in van Schijndel, transformation into obligation only under certain
5
C-72/95 Kraaijeveld, C-2/06 Kempter, C-40/08 Asturcom, C-488/11 Asbeek Brusse and
C-397/11 Jőrös.
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