"Understanding National Remedies and the Principle of National Procedural Autonomy: A Constitutional Approach"

Michigan Law Authors
Publish Date
Forthcoming
Publication
Cambridge Yearbook of European Legal Studies
Publication Type
Journal Article
Abstract

This Article provides a constitutionally grounded understanding of the vexing principle of “national procedural autonomy” that haunts the vindication of EU law in national court. After identifying tensions and confusion in the debate surrounding this purported principle of “autonomy”, the Article turns to the foundational text and structure of Union law to reconstruct the proper constitutional basis for deploying or supplanting national procedures and remedies. It further argues that much of the caselaw of the Court of Justice of the European Union may be considered through the lens of “prudential avoidance”, i.e., the decision to avoid difficult constitutional questions surrounding the principle of conferral. As the last section shows, this constitutional understanding of “national procedural authority” – not “autonomy” – ultimately helps clear up some persistent puzzles, and provides critical guidance for when deference to national procedures and remedies is appropriate, and when such deference is misplaced. Comparative references inform the argument along the way.