skönsmässigt beslutsfattande i processrättsliga frågor

of effectiveness, equivalence and effective judicial protection. The cases
where the Court has refrained from making such use of the rules in question
can be explained by the fact that those cases did not present a direct
threat to the enforcement of EU legal rights. Furthermore, where Union
law does interfere with the conferral of discretion, its effect is to narrow
or even completely exclude the scope of discretion. From a Swedish perspective
this means that the influence of EU law runs directly counter to
the intentions of the legislator, which have been to increase the room for
discretion.
Regulating and controlling civil procedure
The conferral of discretion has often been described in literature as a
delegation of legislative power. Although formally incorrect from a constitutional
perspective, this statement highlights two aspects of discretion:
first, that the decision-making powers in procedural matters are
thought to originate with the legislature, and second that the conferral
of discretion is a question of power being transferred from one body to
another. This thesis argues that four distinct power relations are affected
by the ongoing shift from mandatory to discretionary rules in Swedish
civil procedure.
Firstly, the conferral of discretion means that the power to decide how
a certain situation should be handled is transferred from the legislative
to the judicial sphere, and thereby from political decision-makers to lawyers.
The first effect of increased discretion is therefore a judicialization
of civil procedure. This is likely to influence the decision-making process,
both as regards the formal structures and as regards the actual cognitive
process of reaching a decision. This is particularly noteworthy when it
comes to the normative aspect of exercising discretion; while value-oriented
or ideological concerns are considered legitimate in political decision-making,
they are considerably more mistrusted in legal reasoning,
especially among leading Swedish commentators.
Secondly, increased discretion leads to decentralization. As has been
repeatedly emphasised in the preparatory works for civil procedure
reforms in Sweden, discretion conferred upon the judiciary is to be exercised
by the courts of lower instance in their management of individual
cases. Instead of being exercised once for all civil trials by one actor with
general competence (parliament), the control of the litigation process has
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