skönsmässigt beslutsfattande i processrättsliga frågor

conditions in Kühne & Heitz, and upheld discretion in Uniplex. As the
cases concerned different procedural issues, it is possible to explain these
discrepancies by claiming the lines of case law to be unrelated. However,
reading them together reveals a tension between different interests and
values of EU law. Additionally, the reasoning of the van Schijndel judgment
in particular is framed in so general terms that it seems impossible
to rule out that the same reasoning may apply in other situations as well.
The rulings in van Schijndel and, albeit to a lesser extent, Kühne &
Heitz show that EU law issues demands on national courts even if they
act within their competence according to national law and even if the
national rule itself is not contrary to EU law. That is to say that the
decision of a national court can be contrary to Union law, even though
the decision is in conformity with national law and national law is in
conformity with Union law. CJEU case law thus sets a higher standard
for national courts, than it does for national legislators. Discretionary
rules function as a back door, through which substantive EU law can
enter national legal systems unhindered by national legal requirements
that would otherwise, legitimately, bar it at the front gate. Meanwhile,
however, it is clear from the judgment in Uniplex that the Court does not
consistently make such use of discretion in national law.
To explain this tension it is worth noting that the Union’s competence
in domestic (as opposed to cross-border) procedural issues derives from
its competence in substantive matters; the Union’s interest in procedural
law is only to ensure the enforcement of substantive EU law. Thus,
it is reasonable to expect Union law to raise higher demands in procedural
matters closely linked to the subject-matter of litigation. This may
explain the more intrusive approach in van Schijndel as well as the more
autonomy-oriented one in Uniplex, as the court’s decision in the former
case was decisive for the claimants’ chance to have their rights upheld in
substance, whereas in the latter it was not. Based on this explanation,
the thesis outlines a model for incorporating CJEU case law in Swedish
courts’ exercise of discretion, based on the proposition that the procedural
persuasiveness of EU law is relative to the impact of the procedural
rule on the substantive outcome, and on the form/substance divide established
in Swedish legal writing.
In conclusion, the thesis argues that the CJEU uses discretionary rules
in national procedural law as a means to further the influence of EU
law in national legal systems beyond what follows from the principles
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