skönsmässigt beslutsfattande i processrättsliga frågor

rules. Thus, fourthly, the development towards increased elements of
discretion furthers the Europeanization of civil procedure, in the sense
that the procedural obligations of national courts are to a larger extent
determined on Union, and to a lesser extent on national, level. This is,
as in the case of judicialization described above, likely to affect the decision-making
process and possibly also the reasoning and even the substance
of the decision. In this way, Europeanization affects the kind of
judicalization taking place.
Europeanization also has an impact on the other consequences discussed
above. It counteracts the decentralizing effect by a sort of recentralization,
from the multitude of national courts to the CJEU. Thereby
decentralization gradually turns into a transferral of power between two
centrally placed authorities: from the national parliament to the Union
judiciary. As the increasing case law from the Court also limits the room
for discretion of the national courts, the increased European influence
also lessens the risk of inter-procedural fragmentation. It does not, however,
decrease the risk or degree of intra-procedural fragmentation; if
anything, it strengthens it partly by consolidating and institutionalising
such discrepancies, partly by introducing new norms for particular procedural
issues without insight in how this affects the national procedure
as a whole.
In sum, the thesis argues that the ongoing development towards
increasing judicial discretion in Swedish civil procedure causes the control
of procedure to be transferred from the political to the judicial power
sphere, where it is both distributed between the national courts and
transferred from the national to the supranational level. An effect of this
is that the opportunities to make procedural decisions based on a holistic
understanding of the functions of civil procedure are reduced, and that
the possible impact of EU law on both procedural and substantive law is
enhanced.
Two concluding remarks
First remark: On the integration of EU and national law
In Sweden, as presumably in most other European jurisdictions, the interest
in a “correct” outcome in substance is not considered to outweigh the
interest in a fair trial. In cases such as van Schijndel, however, the Court
seems to have been relying solely on the interest in the full effectiveness
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