Edited by Adam Lazowski and Steven Blockmans
Chapter 14: National procedural autonomy: concept, practice and theoretical queries
National procedural autonomy is an elusive and contested concept. It is riddled with several tensions. The first is between semantics and being. It reflects the disparity between the judicial practice and the academic discourse on national procedural autonomy. Semantically speaking, national procedural autonomy is a scholarly invention. The Court of Justice of the European Union (CJEU or the Court) resisted describing its jurisprudence in those terms for a number of years. While the notion of national procedural autonomy first appeared in scholarly writing in 1972, Advocates General picked it up in the 1990s, whereas the Court has started to employ it only as of 2004. The second tension, which divides especially academic opinion, is between the existence and the viability of the national procedural autonomy. For some there is no such thing as national procedural autonomy, while for others it represents one of the main principles underlying the institutional relationship between EU law and national law. To these views we must add those belonging to the middle ground, as it were. They believe that there is something to the idea of national procedural autonomy, but prefer talking of national procedural competences rather than autonomy. The divisions about the very existence of national procedural autonomy are usually fuelled by conflicting views on the practical viability of the concept as employed by the Court. Again, while some are content with the Court’s national procedural autonomy test, others insist that it is beset with contradictionand is only creating false impressions.
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