skönsmässigt beslutsfattande i processrättsliga frågor

of EU law, which outweighs all legitimate procedural concerns if national
law allows for discretionary decision-making. The CJEU has often been
criticised for such one-sided reasoning, and was notably warned of it by
its own Advocate General in van Schijndel.
A legal order where the substantive outcome takes precedence over
procedural rules favours the legislator in charge of substantive law – in
the cases at issue here, the EU – at the expense of that governing the court
system – i.e. the Member States. However, an approach oriented towards
the full effectiveness of EU law is not only detrimental to Member States’
procedural autonomy (or what remains of it). It also has negative effects
from the EU law perspective.
First, heavy reliance on the principle of loyalty risks buying the effectiveness
of EU law at the expense of its uniformity. van Schijndel is a
case in point. By effectively excluding discretion at the national level, the
Court created a dichotomy between two polar situations that can occur
in Member States: either national courts are obliged to act (if national
law provides for a discretion or for mandatory action), or they are forbidden
to do so (if national law prohibits it), but no option in between. In
contrast, allowing for discretion would possibly have created differences
in civil procedure within a Member State, but would have contributed
to mitigating systemic differences between Member States. Secondly,
interventionist rulings such as van Schijndel set Union law on a collision
course with Member State laws. In such collision situations, the principles
of primacy and direct effect will ensure the effectiveness of EU law,
but will also consolidate the distinct identities of Union and national law
respectively by emphasising the primacy of the former over the latter.
There are cases that seem to suggest a way forwards. In Donau Chemie
the Court rejected a national rule effectively prohibiting disclosure of
the judicial case-file in competition law cases, holding that such a rule
made private enforcement of competition law practically impossible. In
that situation a solution based on the primacy of Union (substantive) law
was impossible, as both parties relied on Union law: the claimant on his
right to compensation for damages suffered by the defendant’s violation
of EU competition law, and the defendant on the effectiveness of leniency
programs, which would be greatly reduced if documents related to
the leniency proceedings were to be disclosed to third parties. However,
instead of itself striking the balance between these two competing Union
interests, which the Court would doubtlessly have been competent to do
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