The Principle of National Procedural Autonomy: Shadows and Lights
Il principio dell’autonomia procedurale degli Stati membri: luci e ombre
Le principe de l’autonomie procédurale des États membre : ombres et lumières
One of the most basic tenets of the EU constitutional order is that, in the absence of supranational rules to enforce EU law and to ensure judicial protection of EU-derived rights, it is necessary to rely upon national legal systems and the rules of their procedural machinery. Such a stance has been articulated in two declinations: the twin principles of equivalence and effectiveness. These find their deep roots in the well-known judgments Rewe-Zentralfinanz and Rewe-Zentral and Comet. The formula on equivalence and effectiveness has been repeated forever. We have all used it. At first glance, the case law seems set in stone. It seemingly implies a stable, formulaic test that we have been familiar with for decades – and yet, in reality, the use and meaning of this ancient formula have evolved considerably over time. Clearly and undisputedly this early procedural autonomy principle has been gradually evolving and become intertwined with many hard constitutional principles of EU law such as the principle of effective judicial protection now enshrined in Art 47 of the Charter. And yet the twin principles of equivalence and effectiveness are still very much alive and kicking in the case law of the Court. Despite such well-considered practice, more often than not, the Court has been criticised for applying these principles in an unpredictable manner and with different levels of intensity with no apparent explanations. Let us therefore try to discuss shadows and lights in the recent case law of the Court, in an attempt to distinguish between what is merely appearance of inconsistency (Part I), and what may reveal the underlying truth of how these twin principles really operate in the case law of the Court (Part II).
