A. The Elusive Origin of National Procedural Autonomy – ‘Permissive’ or ‘Prescriptive’?

Traced back to the Rewe case of 1976, and repeated ever since, the principle of national procedural autonomy comes with a prefatory condition and two closing qualifications:

The prefatory condition that national procedural rules govern ‘[i]n the absence of Community rules’ may be a source of confusion, as it could point in opposite directions. First, it may narrowly suggest that Member States enjoy procedural authority only by default, ie only as long as the Community (now Union) has not made rules to harmonise the relevant procedural law. Put another way, on this view, Member States merely enjoy a ‘presumption’ of procedural authority.Footnote ⁸ Beyond that presumption, however, Member States have no real ‘autonomy’ at all, but only such national procedural discretion as the Union from time to time chooses to permit. Let us refer to this as ‘presumptive’ or, better, ‘permissive’ national procedural autonomy.

Second, however, the prefatory clause may be taken to suggest more broadly that the Community (now Union) does not have the competence to make rules on procedural matters and that, therefore, primary Union law necessarily and constitutionally preserves Member States’ freedom over procedure (unless and until the foundational Treaties were to be amended). This view suggests that Union rules on procedural matters would be ultra vires of the Treaties and hence unconstitutional under Union law. Put another way, on this second view, the ‘absence’ of Union rules on the subject is taken to flow not from any policy decision on the part of the Union legislator, but from the constitutional limitations prescribed by the Treaties. Member States’ freedom over procedure is thus not merely permitted by Union legislation, but constitutionally prescribed by the primary law of the Treaties themselves. For the sake of clarity and to distinguish it from the first variety, we shall call this ‘constitutional’ or, better, ‘prescriptive’ national procedural autonomy. This latter, constitutionally prescribed national procedural discretion seems most compatible with the broad national procedural ‘autonomy’ that the principle's label seems to promise.

It does not take long to figure out, however, that the language in Rewe (and successor cases) does not support a broad version of constitutionally prescribed ‘autonomy’, if by that we mean complete Member State freedom over procedural rules. Following Constantinos Kakouris, we may, for instance, observe that Rewe's prefatory clause (‘[i]n the absence of Community rules’) differs significantly from the prefatory clause the Court consistently uses in other domains (eg ‘as Community law currently stands’ or ‘at the present stage of development of Community law’) to signal absence of constitutional authority, suggesting that the Court in Rewe was not signalling any Treaty limitation on Community competences, but merely the politically contingent absence of relevant harmonising rules.Footnote ⁹ Whenever the Court intends to signal hard, constitutional limitations on the Union's competence under the Treaties, it tends to use one of the latter formulations, implicitly including the Treaties in the phrase ‘Community law’. In these latter constitutional formulations (‘as Community law currently stands’ or ‘at the present stage of development of Community law’), the phrases ‘currently stands’ or ‘present development’ thus signal the current stage or development of the foundational treaties of the Community (and Union), not merely political choices of secondary legislative rules or administrative decisions. This reading of the case suggests that Rewe was merely stating what follows if secondary legislation happens to be silent on the matter of procedures. Rewe thus never intended to signal that the Union was constitutionally prohibited from making procedural rules for Member State courts.

Nor could it be any other way. Rewe's two closing qualifications (that Member State procedural rules not be ‘less favourable than those relating to similar actions of a domestic nature’, and that Member State procedural rules not render the enjoyment of Community rights ‘practically impossible’) place Member State procedures squarely within the scope of Community law. It would thus be ‘giving with one hand while taking with the other’, to read the prefatory clause as suggesting Member State procedures are beyond the Union's competence to regulate, when in the next breath Rewe adds two closing qualifications that national courts must nevertheless heed.

To be sure, the twin qualifications of equivalence and effectiveness, as they are called, do not necessarily imply free-standing legislative competence over national judicial procedure at the Union level. But they do—necessarily—suggest that Member State procedural law is subject to Union law, the interpretation of which is controlled by the Court of Justice. In that sense, Rewe cannot be understood as supporting any hard autonomy, at least not in the sense of complete freedom from Union control.

This conclusion should not come as a surprise. We can recall the early insight of Koen Lenaerts that there is ‘no nucleus of sovereignty that the Member States can invoke, as such, against the Community’.Footnote ¹⁰ Similarly, we can say here: there is no black hole in the universe of Union law for Member State procedures. Member State procedural law, as such, is not immune from Union control.Footnote ¹¹

B. Primacy Over Autonomy – the ‘Trinity of Legal Normativity’

But there is more. Pushing aside national procedural autonomy in favour of EU primacy, one might note that Rewe's canonical formulation explicitly grounds the requirement of effectiveness in the basic obligation to safeguard ‘the rights which the national courts are obliged to protect’.Footnote ¹² Although this phrase in Rewe comes without quotation marks or citation, it invokes the primacy of Community law first formulated in Van Gend. Indeed, in that first landmark case the Court of Justice had already cut through national rules on the incorporation of treaties into national law, spoken directly to Member State courts, and told national judges in no uncertain terms that Community law contained ‘rights which national courts must protect’.Footnote ¹³ As the trilogy of Costa,Footnote ¹⁴ Simmenthal,Footnote ¹⁵ and Factortame Footnote ¹⁶ later clarified, this primacy of Community law and the direct effect in national courts spans all aspects of Union law, or what we may understand as the trinity of legal normativity, ie substance, procedure, and remedy.

To be sure, one might have imagined a system in which primacy was solely a substantive conflicts-of-law tiebreaker without direct effect. One might also have imagined a narrow kind of primacy and direct effect with a highly formalised distinction between substance (where primacy and direct effect rule) and procedure (where they do not), or even between substance and remedy, on the one hand, (where primacy and direct effect rule) and procedure, on the other, (where they do not). But the Court pursued a more comprehensive, practical, and constitutional vision, one in which primacy and direct effect extended broadly, including implied powers,Footnote ¹⁷ to cover all three normative aspects of Union law: substance, procedure, and remedy.

Costa drove home that Van Gend's primacy makes its way straight into Member States’ legal systems in terms of the full substantive vindication of EU law, ie that EU law is ‘an integral part of the legal systems of the Member States and which their courts are bound to apply’.Footnote ¹⁸ Simmenthal specifically reiterated that point as to Member State procedural law, even where the countervailing national procedure is grounded in a Member State's constitution. In particular, the Court in that case demanded that, where necessary to preserve the effectiveness of Community law, lower courts must ignore their national procedure that would have them refer a matter to their own constitutional court before setting aside nonconforming national law. Factortame, ultimately, did the same for remedies, declaring that Member State courts must go beyond their powers established under national (constitutional) law and issue an interim injunction suspending even the application of an act of Parliament to prevent irreparable harm. Having established primacy in substance, procedure, and remedy, the trinity of the Union's legal normativity would seem complete.

But what about national procedural autonomy? Some say Van Gend and its progeny indeed settled matters conclusively in favour of the primacy of Union law. For Constantinos Kakouris and Michal Bobek, for example, primacy and direct effect are enough to put any claim of national procedural autonomy to rest. To them, procedure and remedy are ancillary to substance, and that ends matters because substantive competence simply brings procedural and remedial competence as well (even if only as a matter of judicial competence for the Court of Justice to decide what procedures and remedies are necessary to make substantive Union law work). Kakouris takes it even a step further in that he sees all Member States’ procedural law as Union law whenever national procedures apply to substantive Union law. The idea is that in the application of substantive Union law, national procedural rules are implicitly incorporated into Union law and hence operate as Union law in Member State courts whenever Union law has not provided otherwise.Footnote ¹⁹ Bobek, in turn, agrees that Union law ultimately controls all procedural and remedial implementation of substantive Union norms, and concludes that Rewe's reference to equivalence should therefore be discarded as useless (and also hopeless).Footnote ²⁰ In his view, Member State procedures and remedies should be accepted or set aside based exclusively on an assessment of effectiveness.Footnote ²¹ Put another way, Kakouris and Bobek both ultimately see ‘national procedural autonomy’, to the extent it exists, exclusively as a choice on the part of the Union legislature and Court of Justice to let Member State procedures stand. That is, they see ‘national procedural autonomy’, to the extent it exists at all, solely as what we earlier called permissive national authority. In their vision, it seems there is no place for any constitutionally mandated national procedural autonomy, i.e., prescriptive national autonomy does not exist.

C. Primacy and Autonomy – Balancing

Not so fast, argues Sasha Prechal. There is no contradiction, she submits, between Union law primacy and Member State procedural autonomy.Footnote ²² While primacy provides a rule of conflict resolution when two substantive rules conflict, it need not control the procedures that govern the application of substantive law in court.Footnote ²³ This follows, says Prechal, from the incorporation of Union law into Member State legal systems after Costa:

Rather than dismissing national procedural or remedial constraints whenever they curtail the effectiveness of Union law, she sees the Court of Justice moving (albeit inconsistently) toward a kind of ‘rule of reason’. This analysis, properly in her view, conducts a ‘balancing exercise between the interests which are served by the national rules at issue and the effectiveness of Community law’.Footnote ²⁵

Koen Lenaerts more recently suggested much the same.Footnote ²⁶ Lenaerts follows Michael Dougan's reading of the cases, which finds that an initial period of CJEU restraint led to a second period of more aggressively displacing national procedural rules, and finally to a third period of applying an ‘objective justification model’.Footnote ²⁷ Takis Tridimas agrees.Footnote ²⁸ In particular, Dougan reads the Court as asking (1) whether the Union right is adversely affected by the national procedure, (2) whether the national procedure furthers a legitimate aim, and (3) whether the national procedure does so in a legitimate manner, consistent with the margin of discretion left to the Member States by Union law. Lenaerts puts the currently governing approach similarly, but with an equal focus on both sides of the equation—ie with an equal focus on both Union as well as Member State law: ‘In cooperation with national courts, the European Court of Justice (‘ECJ’) endeavours to understand and protect the legitimate interests embodied in the national rules of procedure whilst seeking to ensure a sufficient level of judicial protection for EU rights’. Footnote ²⁹

Whether we call the current approach a ‘rule of reason’,Footnote ³⁰ an ‘objective justification approach’,Footnote ³¹ or ‘selective deference’,Footnote ³² some kind of balancing is presented as a sensible practical compromise between two equal and opposing normative principles—primacy of EU law, on the one hand, and Member State procedural autonomy, on the other.Footnote ³³ High constitutional theory might interpret this along German lines of ‘concordance’, as Robert Alexy suggested in the case of fundamental rights, ie as a way of optimising two principles that clash.Footnote ³⁴

For any such balancing to be performed, however, both principles must firmly exist in the first place. Even when performing such balancing merely to give effect to a presumption of national authority in the absence of EU law rules to the contrary, that presumption in favour of national authority must itself be normatively grounded. What, then, of the position that the only principle at stake is primacy, and that the principle of national procedural autonomy simply does not exist? Should we subscribe to that view? Or should we go along, instead, as Prechal suggests, with Member State procedural and remedial limitations that hamper the effectiveness of EU law—an autonomous source of law—just because Member State procedures similarly limit the enforcement of their own law? Do we not need more than an equal amount of harm to national law before crediting the national side of the balance? Why should EU law care that national law has so limited itself? To be sure, we can always understand the balancing approach as a vague and diplomatically useful way for the CJEU to make friends with Member State courts.Footnote ³⁵ But is there any normative foundation to national procedural autonomy? To put the question more precisely, is there a constitutional justification for claims to national procedural autonomy in EU law itself?

A. The Normative Implications of Structure and the Paradox of Judicial Federalism

Structure carries normative implications. Sometimes structure even carries multiple normative implications that can be in tension with one another. As we shall see, while the principle of national procedural autonomy is not spelled out in the Treaties, something like it does reasonably emerge from the structure of the Union.

In particular, the dédoublement fonctionnel Footnote ³⁶ that turns national courts into Union courts has an institutional and normative flipside. Even when they function as the Union's courts, Member State courts retain their basic organisational authority as courts in virtue of Member State—not Union—law. Member State law sets up and organises Member State courts based on the organic power derived from each Member State's constitution. This means the institutional infrastructure of a national court, even when applying Union law, remains a creature of that Member State, not of the Union. As the CJEU noted in an important case on preserving the rule of law in Poland:

Put simply, Union law ‘piggybacks’ (to use a highly technical term) on the existing institutional infrastructure of the Member States. One might even say that this is true throughout the Union's functions and the national institutions that carry them out—thus broadly reflecting the vertical structure of the system. In any event, it is surely true for the judiciary, where the Union merely borrows national courts for Union purposes.

In one sense, this structure resembles that of the United States, in which state courts are constitutionally bound to carry out federal law as their own. In the United States, the Supremacy Clause, which specifies both the supremacy and direct applicability of federal law in state courts, inexorably fuses federal and state law with supremacy for the former, similar to the way the CJEU's caselaw has done in the EU. Indeed, federal and state law are integrated even more in the US, where there is no space for the kind of constitutional pluralism that allows a component state to view union law through the lens of its own, component state constitution. At least since the Civil War and the Reconstruction Amendments, the US component state polities are constituted politically by the citizens of the United States, which—in contrast to the EU—gives the polity of the union a foundational status on which the polities of the several states are built.Footnote ³⁸ Even in this more tightly formed union, the US Supreme Court has emphasised, much as its European counterpart has, that a state court applying federal law ‘does not, while performing that duty, derive its authority as a court from the United States, but from the State’.Footnote ³⁹ As a result, the touchstone in the United States for what federal law demands of state courts has long been that ‘federal law takes state courts as it finds them’.Footnote ⁴⁰ Thus, even in the United States, state courts applying federal law are seen as creatures of state law, and federal law does not simply remake state courts to its liking.

The limits of what US federal law can ultimately demand of its state courts are notoriously uncertain, and well beyond what we need to discuss here.Footnote ⁴¹ But one thing is clear: while the US Congress has no direct power to create or even reimagine state courts, the US Congress does have the express power—and has long exercised the power—to create lower federal courts with broad jurisdiction to hear all claims of federal law whenever Congress ‘deems’ state courts will not suffice. Therefore, whenever state courts assert, say, a ‘valid excuse’ for refusing to hear a particular federal claim,Footnote ⁴² that federal law claim can always be brought in federal court. In the United States, then, the question of what federal law demands of state courts mostly turns into a question of deciding what should (and what Congress intended) to be decided in federal, as opposed to state, court.

Not so in the European Union. Here, at least for the purposes relevant to our present inquiry, the judicial structure of the federal system is more radically decentralised. To be sure, the CJEU by express Treaty provision controls the interpretation of EU law,Footnote ⁴³ and even has a formal legal monopoly over declaring acts of EU institutions to be in violation of the Treaty.Footnote ⁴⁴ As far as real-world private plaintiffs are concerned, however, the gatekeepers of EU law are, for the most part, the Member State courts. When a Member State court declines to hear, or otherwise refuses to adjudicate, an EU law claim (and refuses to refer relevant questions to the CJEU), the plaintiff usually has no recourse other than an appeal or fresh action within that same Member State's system of courts.Footnote ⁴⁵

Even after Köbler's extraordinary decision to allow an action in a lower Member State court to check the judgment of that same Member State's high court,Footnote ⁴⁶ the claimant in such an action is still operating within that Member State's judiciary. To be sure, the Treaties allow for the creation of ‘specialised courts’ at the EU level where plaintiffs may access the EU's own courts directly. But the Treaties allow for these specialised courts only for ‘certain’ actions and, it would seem, only for ‘specific areas’ of the law.Footnote ⁴⁷ We might yet witness a fundamental shift, and this authorisation could be interpreted more expansively in the future. But, so far, the Parliament and Council have availed themselves of this power only once, and only in the most traditional and limited way, ie by creating a Civil Service Tribunal for disputes involving the EU civil service (and then abolishing that court to move those disputes to the EU's General Court).Footnote ⁴⁸ This seems to be close to a current constitutional convention or settlement. There is no sign that the EU legislative bodies are actively considering vastly expanding the jurisdiction of first instance courts at the EU level to match the jurisdiction of lower-level federal courts in the United States. There is not even a sense the EU legislature believes it has the power to do so.

Under these circumstances, then, the stakes in the EU for determining the duties of state courts are even higher than in the United States. For the most part, the quest in the European Union for private plaintiffs boils down to doing things properly in Member State courts, or doing them not at all. Individuals (and other private parties) have direct access to the EU's own courts in Luxembourg only when suing EU institutions and only under highly restrictive standing rules.Footnote ⁴⁹ For all their other claims based on EU law, it is national courts all the way down. Put simply, private litigants suing anyone other than the EU itself will not get to an EU court without the assistance of some national court. To be sure, the Commission or another Member State may bring an action against the Member State for infringing the Treaties by failing to obey or enforce EU law, and the Commission and others can initiate an Article 7 proceedingFootnote ⁵⁰, or perhaps even withhold financial assistance.Footnote ⁵¹ But, again, unless the claim is against the Union itself, private litigants are limited to bringing their EU law claim in the courts of the Member States.

Returning to the normative implications of structure, and just briefly to the transatlantic comparison, this highlights the apparent paradox of judicial federalism as we compare the European Union with the United States. In both systems, component state courts are creatures of component state law, deriving their organisation and authority as courts from the component states themselves. But while the European Union is generally a less tightly consolidated federal union than the United States, the EU places more demands on its component state courts to make the overall system work.

Of course, one person's paradox is another's hydraulic connection. One might say that the EU places more demands on its component state courts than the U.S. precisely because the EU depends more heavily on Member State courts to maintain an overall complete system of judicial enforcement. Here as elsewhere, what the EU lacks in organisational infrastructure at the Union level, it must make up for by cajoling and conscripting the Member States to act on its behalf. This is, after all, the idea of a vertical system of federalism in Europe. Whereas in the United States, federal law can always, if necessary, be vindicated in federal court, the more radical decentralisation of judicial authority in the European Union means that a complete system of judicial enforcement can only be achieved in the EU by an unyielding obligation on Member State courts to implement Union law. The bottom line: as far as individual rights against anyone other than EU institutions themselves are concerned, in the European Union, the rule of law and the system of judicial enforcement are only as strong as Member State courts make it.

B. The Positive Foundations of National Procedural Authority

Just as we can see both sides of the balance between EU primacy and national procedural authority in the deep structure of EU law, we see traces of both sides in the text of the Treaty. The tension between EU law primacy and effectiveness, on the one hand, and national procedural autonomy, on the other, is reflected here as well.

On the one hand, the EU treaties have come to gesture toward primacy and articulate quite strongly the obligation of Member State courts to bring about a complete system of judicial enforcement. For example, by now, the Treaties have codified—if only by way of non-binding declaration—the CJEU's holdings on the ‘primacy’ of EU law, including Costa's statement concerning primacy over all domestic legal provisions:

The Treaty Declaration incorporating Costa's insistence on primacy over all national rules ‘however framed’, thus suggests an all-encompassing primacy that would seem to extend to the entire trinity of normativity—from substance to procedure and remedy. Furthermore, since Lisbon, the Treaties make explicit—in Article 47 of the Charter of Fundamental Rights—that individuals have a right to an ‘effective remedy’ to vindicate their EU rights in court. The Treaty of Lisbon includes a corresponding provision—Article 19(1) of the Treaty on European Union—which provides that the CJEU's usual role ‘to ensure that in the interpretation and application of the Treaties the law is observed’ is expressly complemented by the Member States’ duty to ‘provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’.Footnote ⁵³ These provisions, in turn, expand on earlier, more general provisions, such as the duty of sincere cooperation,Footnote ⁵⁴ as well as the judicially developed principle of effectiveness.Footnote ⁵⁵

Returning to Prechal just briefly, it would thus seem to follow, based on these provisions alone, that Member State rules of procedure should indeed give way to the effective enforcement of an EU right, regardless of whether that Member State enforces similar domestic rights less effectively. These provisions would therefore seem to support the Kakouris/Bobek view that the primacy of EU law is to be made effective and complete, no matter what.

On the other hand, however, we also find constraints in the Treaties to suggest reservation on this score. We need not delve deeply into the important and pervasive feature of constitutional pluralism,Footnote ⁵⁶ whereby the CJEU must always attend to what you might call ‘the view from the other side’. On that pluralist structural account of the Union, Member States retain good cause to view the EU and its powers through the lens of each of their own constitutions. But even without actively considering constitutional pluralism, i.e., even purely from the point of view of EU law itself, there are limitations to any claim of unvarnished EU supremacy. Even purely from the point of view of positive EU law itself, it cannot be maintained that Union law pays no heed to Member State interests in their own procedures and remedies.

On the Member State side of the ledger, the treaties do not confer any direct, general legislative power on the Union to determine Member State procedural law. To be sure, under the doctrine of implied powers, the CJEU has held that the scope of EU law is to be understood in functional terms, where demands of procedure and remedies (civil or criminal), may flow from the enumeration of substantive competences.Footnote ⁵⁷ And properly so. Procedures and remedies must be entailed by substance at least in part, or else the trinity of legal normativity—and hence the normativity of substantive law itself—would be incomplete. And yet, regulating the Member States’ institutional organisation, such as judicial procedure, is nonetheless recognised as involving a notionally distinct exercise of power. This is evidenced, for example, by the express conferral on the Union of carefully circumscribed authority to regulate certain aspects of civil and criminal procedure for the purpose of enhancing judicial cooperation in matters with cross-border implications.Footnote ⁵⁸

Procedural and remedial demands, therefore, must be considered an additional step of harmonisation beyond that of harmonising the underlying substantive law itself, and thus trigger review under the general background principles of Union law, including subsidiarity, proportionality, and respect for Member States’ national constitutional identity.Footnote ⁵⁹ This suggests caution before overriding Member State procedural and remedial rules without concern for Member State interests. Indeed, as the Lisbon Treaty has made clear, subsidiarity applies not just to the substantive decision to regulate, but to the ‘form of Union action’ as well.Footnote ⁶⁰ Neither ‘shall … exceed what is necessary to achieve the objectives of the Treaties’.Footnote ⁶¹ To be sure, the drafters of the Treaty likely had the choice of regulation versus directive foremost in mind as they amended the statement of the principle of subsidiarity to include the ‘form of Union action’. But we should not understand the applicability of subsidiarity to ‘form’ so narrowly. Subsidiarity should apply to both form and substance more broadly understood. After all, what is sauce for the goose is sauce for the gander: if the legal normativity of EU law encompasses substance, procedure, and remedy, the same must go for any restrictions on EU law based on subsidiarity, proportionality, and respect for national constitutional identities. All three aspects of EU law—substance, procedure, and remedy—must be subject to these constitutional constraints as well.

Seen from the vantage point of conferral, especially after Lisbon, authority over procedures and remedies might thus be viewed as a kind of ‘shared’ competence,Footnote ⁶² subject to displacement by the Union under the usual constraints. Given the trinity of legal normativity, the direct conferral of substantive competences of the Union includes the implied conferral of the necessary attendant procedural and remedial competences as well.Footnote ⁶³ Under ordinary rules of shared competences, the exercise of Union power does not have the effect of pre-empting all Member State activity in the entire field of such activity, but displaces national rules only ‘to the extent’ the Union has exercised its own powers.Footnote ⁶⁴ As the Lisbon Treaty's Protocol on shared competences emphasises: ‘the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area’.Footnote ⁶⁵ Exercising shared competence only regarding certain ‘elements’ thus anticipates Union regulation of substance while leaving national procedures and remedies in place. This alone precludes jumping from the regulation of substance to the conclusion that the Union is displacing Member State procedural and remedial rules as well. The exercise of the further step beyond substantive regulation into the regulation of procedure and remedies is thus revealed as a separate act of regulation, subject to a separate review for its legislative grounding and constitutional propriety.

Moreover, as the Union is rarely exercising any directly conferred procedural or remedial competences when harmonising national procedures and remedies,Footnote ⁶⁶ but instead mostly exercising implied powers based on the Union's substantive competences, extending substantive measures into harmonising procedures and remedies triggers a more careful review of the necessity and propriety of that extension than regarding those expressly authorised substantive measures alone. The Court has never policed the exercise of the EU's competences all that closely,Footnote ⁶⁷ only rarely striking down an EU measure for having overstepped the scope of Union competences. In light of the general reliance on Member State's institutions, and the generally ancillary and hence implied nature of the Union's power over procedure and remedies, however, review for compliance with subsidiarity, proportionality, and respect for national constitutional identities is thus (properly) more stringent here than when it comes to the exercise of expressly conferred competences.

This, then, is the normative flipside of structure as positively recognised in the Treaties. Because of the structural dependence of the Union on Member State courts, and because Member State courts receive their authority as courts from Member State law,Footnote ⁶⁸ every procedural demand on Member State courts is itself an imposition on the Member States that must be compatible with the principles of subsidiarity, proportionality, and a proper respect for national constitutional identity. And given that (except for regulation under, say, Articles 81 or 82 TFEU on judicial cooperation in cross-border matters), we are dealing with the exercise of an implied power over procedures and remedies to effectuate a substantive measure, the review under those three constraints tends to be stricter than when considering the underlying substantive measure alone. This both explains and justifies the existence of a ‘presumption’ in favour of Member State procedures and, more important, the stringency with which it is pursued. It also provides the normative foundation for EU law interventions into those national judicial procedures. In sum, it drives the Court's initial presumption in favour of national procedures, and the so called ‘balancing’ exercise between EU primacy, on the one hand, and national procedural autonomy, on the other, to ascertain whether the presumption in favour of national procedures and remedies should be overcome.

Notice what we have just done. Having reconstructed the normative foundation of Member States’ claim to procedural authority, that normative claim cannot simply vanish in the face of explicit EU law rules. We thus moved from permissive to prescriptive national procedural authority. Both exist.

Recall the opening line of the Rewe test (‘In the absence of Community rules on this subject …’.). This says preciously little about what happens in the presence of Community law rules on the subject. It would be a plain logical fallacy to conclude that the inverse of Rewe's conditional statement were true.Footnote ⁶⁹ The Rewe statement does not suggest, for example, that in the presence of Community law rules on the subject, any such Community rules inevitably trump all national procedural rules. Having established the normative foundation of Member States’ claim to national procedural authority, that national authority can only be displaced by a superior claim of authority on the part of the Union. Even where a given procedural rule is spelled out in positive EU law, one must therefore inquire—however quickly and with whatever deference to the EU legislature one might do so—whether such EU law displacement of national procedures is constitutionally justified. Therefore, having held substantive EU law valid, the CJEU must ask, separately, whether the further intrusion into Member State procedural and remedial law is justified according to subsidiarity, proportionality, and a proper respect for national constitutional identity.

A. Primary Law: Resolving the Simmenthal/Rewe Contradiction

Unpacking the judicial calculus, as we have done here, helps clear up the ‘puzzle’ or ‘contradiction’ that Prechal and others identified between the Simmenthal/Factortame line of judgments, on the one hand, and the Rewe/Comet line of judgments, on the other.Footnote ⁸³ The charge is generally one of inconsistency and confusion in deciding Simmenthal and Factortame on primacy grounds, as opposed to the equivalence and effectiveness grounds of Rewe and Comet.

A straightforward response might be to charge the Court with conflating procedures and remedies. Recall Koen Lenaerts's opening bid allocating not just ‘procedural rules’ but also ‘remedies’ to the courts of the Member States. He did so in the course of discussing the balancing act in accommodating national procedural autonomy. Some might say President Lenaerts and the Court are confusing by not distinguishing carefully enough between procedures and remedies. If only we were to distinguish carefully between the two—and extend national procedural autonomy only strictly to procedural rules but not to remedies—matters would be clear. National procedural rules would thereby be saved from EU intrusion, while national remedial rules would be stamped out by the hard primacy of substantive EU law. After all, so this argument goes, it is called the principle of national ‘procedural’ autonomy, not the principle of national ‘remedial’ autonomy.

Indeed, as any decent remedies textbook will tell you, substance is your right, remedies are what you get for that right, and procedures are what take you from one to the other.Footnote ⁸⁴ Remedies (such as whether you may bring a cause of action for damages, whether you get damages or equitable relief, or whether you can appeal an adverse judgment to a higher court) are therefore more closely tied to substance than those petty pesky procedures (such as time limitations, filing requirements, evidence rules, and so on). Given that remedies are more closely related to substance, they tend to tap into the primacy of substantive law. After all, for every right there is a remedy, as Chief Justice Marshall was not the first to say, with nary a mention of procedure.Footnote ⁸⁵ Ubi ius, ibi remedium.Footnote ⁸⁶ Procedures, on this view, are mostly the technicalities that do not really relate to substance, and hence do not tap into the primacy of substantive law.

Unless, of course, they do. As that same textbook should tell you, at least if it really is decent, the distinction between procedures and remedies, and indeed the distinction between procedure and substance, more broadly, is not so crisp after all. Even if you do not subscribe to Justice Holmes's ‘bad man’ theory of the law,Footnote ⁸⁷ or to a process theory of rights,Footnote ⁸⁸ if there is one thing sociological jurisprudence and legal realism have taught us, it is to be sceptical of leaning too heavily on such formal distinctions.Footnote ⁸⁹ In light of these critical movements, it should appear quite obvious that any substantive right is controlled, limited, and, in practice, significantly defined by, the procedures that govern access to the remedies for any breach of that right.

As we suggested at the outset,Footnote ⁹⁰ the Court's judgments therefore properly recognise the functional interconnectedness among substance, procedure, and remedy. The point of considering this as a kind of trinity of legal normativity, as we did earlier, was to understand the three elements of substance, procedure, and remedy as different aspects of a legal norm that cannot be sharply distinguished from one another. Plus, each of the three is at least partially constitutive of the other two. A quick second look for purposes of the more specific question we are considering here confirms that no simple distinction between (pre-empted) national remedies and (preserved) national procedures can explain the Court's decisions. It would seem a rather pointless word game, for example, to classify Simmenthal as a ‘remedial’ case to explain its jumping straight to primacy without first considering national procedural autonomy in the balance. The judgment concerned Member State rules on the sequencing or timing of (1) sending a conflict between EU law and Italian legislation to the Italian Constitutional Court and (2) referring a question regarding that conflict without delay to the CJEU (then-ECJ). To be sure, we can classify the case as involving a question of ‘remedy’, as it involved the ability of a national lower court to set aside conflicting national law and the national remedy of an appeal or reference to the Italian Constitutional Court. At the same time, however, the judgment may just as fairly be classified as involving ‘procedure’, as the question did not concern the national remedy as such, but the national procedural rule that demanded that an appeal or reference to the Italian Constitutional Court must precede any potential reference to the CJEU or setting aside of national law. Thus, if there is a principle of national procedural authority (even short of the ‘autonomy’ the traditional label seems to promise), it should apply to Member State ‘remedies’ in addition to more narrowly conceived ‘procedures’.

A better way to resolve the supposed contradiction is to begin by acknowledging, as suggested here, that primacy is always operating as one factor in the decision whether to leave in place Member State procedures and remedies. In that sense, the two lines of cases, ie Simmenthal/Factortame representing primacy, on the one hand, and Rewe/Comet representing Member State procedural authority (or ‘autonomy’, in the traditional formulation), on the other, are always present.Footnote ⁹¹ This is true even if only one line of cases or the other is mentioned in any particular judgment. Once we recognise that both principles—primacy and national procedural authority (or ‘autonomy’, if you insist) —are always present, we can chalk up the express mention or more elaborate discussion of one or the other to judicial rhetoric, strategy, or economy.

Illustrating the point, we can see both principles at work side-by-side in the Court's Unibet decision,Footnote ⁹² which answered three distinct questions spanning remedies and procedures. The first question concerned the availability of a free-standing declaratory action to challenge a national law's compatibility with Union law; the second concerned the availability of an injunction as interim relief in a pending action for damages; and the third concerned the procedural rules that govern the issuance of that interim relief. The Court expressly cites both the Rewe/Comet line of cases on national procedural autonomy as well as the Simmenthal/Factortame line of cases on supremacy in one breath.Footnote ⁹³ And even though it does so expressly in answer to the first question, the same principles inform the entire judgment throughout. Moreover, the way the two lines of cases play out in answering the three questions differs not based on whether a given question formally concerns either ‘remedies’ or ‘procedures’. Instead, both lines of cases, which the Court cites in answer to the first question, undergird the Court's answers to all three questions. On the first, the Court essentially holds that as long as equivalence and effectiveness are maintained, Union law does not require a free-standing declaratory action to determine whether a given national law is incompatible with Union law. On the second, the Court essentially harkens back to Factortame to hold that a national tribunal seized of a matter must be able to provide interim relief where necessary to ensure the full effectiveness of Union law. And on the third, the Court holds that the procedures governing the issuance of such interim relief are to be determined by national law, as long as equivalence and effectiveness are preserved. All three questions, then, are decided on equivalence and effectiveness with supremacy kicking in whenever the national court would otherwise fail on one or the other.

Second, when seen in this light, we might notice that the principal cases failing to mention the Rewe/Comet line altogether tend to concern Member States implementing primary, as opposed to secondary, Union law. For instance, even though the dispute in Simmenthal itself was nominally about the enforcement of secondary law, ie Regulation (EEC) No 805/68 on the common organisation of the market in beef and veal, the real dispute was about effectuating a core constitutional provision of the Union's primary legal architecture, ie the reference procedure of Article 177 EC (now 267 TFEU) itself. Factortame, in turn, involved primary law on both counts: first, the underlying substantive question of whether the UK's fishing vessel rules violated the Treaty's non-discrimination provisions and, second, the integrity of the Treaty's basic reference procedure. In both Simmenthal and Factortame, the Court jumped straight to primacy as the framework for analysis. We see the same in cases regarding general principles and fundamental rights.Footnote ⁹⁴ The fact that the dispute in such cases concerns primary—not secondary—Union law may help explain that quick jump to the primacy of EU law.

When the demand on Member State procedures and remedies is made directly by primary Union law, considering prudential avoidance (ie asking whether the EU demand could be ‘read down’ just to avoid the harder constitutional question) makes little sense. In the case of interpreting primary law, any ‘prudential’ narrowing of the Union's demand on the Member States could generally be overcome only by amending the Treaties themselves, ie by constitutional change. Whenever primary law demands on Member State procedures are involved, then, there is no such thing as ‘prudential avoidance’, at least not in the sense we have used the term here.Footnote ⁹⁵ All there is, in such cases, is constitutional adjudication. Any interpretation deferring to national procedures and remedies would have to result from hard constitutional interpretation, as opposed to more temporary and fluid prudential construction of Union legislation.Footnote ⁹⁶

Third, especially in cases that involve restrictions on such central elements of primary law as the reference procedure, any limitation on Union law as a matter of constitutional adjudication would spell a limitation on the effectiveness of Union law everywhere. The Court has been consistent (and rightly so) in its fierce protection of the reference procedure, given that it lies at the very core of the EU's constitutional architecture.Footnote ⁹⁷ As far as the reference procedure is concerned, only full effectiveness will do or else all of Union law is compromised. No surprise, then, that in primary law cases, especially those involving the effectiveness of the reference procedure itself, the Court is rather quick to jump emphatically to EU law primacy.

Finally, as for the absence of open balancing in these cases, the Court has never admitted that the principles of subsidiarity, proportionality, or any other form of balancing have any place in interpreting primary Union law.Footnote ⁹⁸ No surprise, then, that balancing is not much discussed in primary law cases when it comes to procedures and remedies. The only remaining principle for the Court to consider in such cases from the perspective of EU law would seem to be Article 4(2) TEU's respect for Member State constitutional identity, which is the Treaty's way of formally incorporating constitutional pluralism into EU law itself. And here we have arrived at the highest level of judicial diplomacy and self-preservation, which often makes for bad, or rather opaque, judicial reasoning in actual judgments.Footnote ⁹⁹ Investigating the dance of mutual accommodation that occurs at this level is beyond the scope of this Article. Suffice it to say here that if the CJEU ultimately gives in to Member State constitutional demands as part of such pluralist accommodation of national constitutional identity, it will usually do so not by acknowledging any real balancing or any real diminution of the effectiveness of EU law on account of national constitutional constraints. Instead, the Court will rather upload and integrate the Member States’ constraints into EU law, and thereby adopt them as the EU's own. We have seen this play out time and again from Solange to Taricco and beyond.Footnote ¹⁰⁰

In short, the centrality of core primary law to the case at issue, and the corresponding absence of prudential avoidance, may often explain the neglect of the Rewe/Comet line of cases in favour of more ready displacement of Member State procedures on the basis of the primacy of EU law.Footnote ¹⁰¹

B. Secondary Law: The Shifting Role of Prudential Avoidance

In contrast to primary Union law, secondary legislation may indeed be interpreted narrowly to preserve restrictive Member State procedures, whether simply as a matter of ordinary legislative interpretation or as a matter of prudential avoidance to head off a larger constitutional question or clash. After all, if the legislature created the right to be enforced in court, the legislature might have created a more limited right, ie one restricted by procedural and remedial limitations in national courts, just to avoid any uncomfortable or difficult constitutional questions a broader right might bring. In the course of determining the scope of such permissive national authority, ie the national discretion EU legislation chooses to allow, balancing would seem quite natural and, therefore, front and centre. Hence, in cases concerning the effectiveness of simple secondary legislation, the Court will often prominently consider whether it might not be adequate or sufficient to let Member State procedures stand and whether Member State procedures serve legitimate functions the Union ought to respect (or incorporate into EU law itself).Footnote ¹⁰² This essentially is the run-of-the-mill reasonableness check and the balancing the Court routinely performs in the absence of EU law specifying any particular procedural rules.Footnote ¹⁰³ And this is also the core of prudential avoidance and restraint. As discussed previously, a deferential form of balancing, where the tie goes to the Member States, avoids more difficult constitutional questions, and may initiate further dialogue with the EU legislature to determine whether certain procedures and remedies are really needed (or precluded).

But prudential avoidance does not always make sense. First, and rather obviously, prudential avoidance makes little sense where the procedural demand of secondary EU legislation is clear. In part this simply explains the basic Rewe test, ie where EU law rules on procedures and remedies are indeed present, the remainder of the Rewe formulation falls away. The Rewe presumption, after all, was conditioned on the ‘absence of Community rules on the subject’.Footnote ¹⁰⁴ But even if you further agree, as argued here, that some solicitude for Member State procedures is nevertheless constitutionally prescribed even where Community law rules do exist, prudential avoidance in such cases still makes little sense. Where secondary legislation expressly specifies, say, the statute of limitations, or the shifting of the burden of proof, any limit on EU law's procedural and remedial demands can be determined only by considering the constitutional constraints of the foundational Treaties. To be sure, clarity is ultimately in the eye of the beholder, but, in principle, you do not read down unambiguous legislation. The same goes for situations where EU law does not expressly spell out its procedural and remedial demands in the text of legislation, but such demands are nonetheless quite clear from the context of the legislation. In such situations, too, only prescriptive constitutional considerations should keep EU law from displacing national rules.

Second, prudential avoidance may make less sense in areas of dense, substantive harmonisation. As noted earlier, Michael Dougan and others have observed, and even advocated for, a sectoral approach, in which the Court gives less deference to Member State procedural rules in sectors that are, in substance, intensely harmonised.Footnote ¹⁰⁵ Distinguishing carefully, as we have done here, between the interpretation of legislative purpose, hard constitutional review, and prudential avoidance helps explain and support that argument. Even without an express intervention into Member State procedures in the text of EU legislation, there may be good reason, on the understanding put forth here, for the Court to consider the density of Union regulation in the course of adjudicating whether EU procedures should displace Member State procedures. Even if the Union's secondary legislation does not make a particular procedural demand explicit, the dense regulation or harmonisation of a particular area of the law may nonetheless suggests an underlying legislative purpose to have Union law displace ‘domestic legal provisions, however framed’Footnote ¹⁰⁶ (ie including Member State procedural law).

Put in simple (almost simplistic) terms: the more the Union legislature regulates in a given area, the more the Union legislature is willing to displace Member State rules, and the less qualms the judiciary should accordingly have to read EU legislation as intending to displace not only national substantive law but national procedural and remedial rules as well. Intense harmonisation in a given area thus generally argues against prudential avoidance, and, instead, in favour of interpreting legislation in that area more broadly, while preserving restrictive national rules only when required by hard constitutional constraints on EU power. Furthermore, if the intense harmonisation is indeed justified for purposes of substantive law, the density of substantive regulation would seem to provide a good foundation on which to argue that the additional harmonisation of national procedures should satisfy subsidiarity and proportionality as well.Footnote ¹⁰⁷

Third, and finally, where secondary legislation, such as, say, the equality directives, gives effect to a general principle of Union law, prudential avoidance should also have little purchase. Such legislation straddles the divide between primary and secondary law. And as noted earlier, prudential avoidance makes less sense in the case of primary law, given that such primary law cannot simply be amended in response to narrow judicial construction. Moreover, despite the EU legislature having a legitimate voice in the interpretive construction of primary law, one thing is clear: the legislature is neither the source nor the sole keeper of primary law. Accordingly, secondary legislation implementing general principles by providing for individual justiciable rights to vindicate such primary law, should generally not be subject to the narrowing construction of prudential avoidance. The presumptively broad construction of the substance should carry with it the broad construction of procedural demands to vindicate that substance broadly as well.Footnote ¹⁰⁸

Returning to Lisbon just briefly, this last conclusion is underscored by the codification in Article 47(1) of the Charter of Fundamental Rights of ‘the right to an effective remedy’ for ‘[e]veryone whose rights and freedoms guaranteed by the law of the Union are violated’. Plus, as Article 19(1) now expressly confirms, the obligation to provide an effective remedy for such rights is shared among the various courts of the Union. The patchwork judicial system of the Union we described earlier, ie the complex judicial system comprising the courts the Union itself establishes plus the courts of the Member States, must work seamlessly to provide a coherent and complete system of judicial remedies for all the rights and obligations under Union law.Footnote ¹⁰⁹ This becomes of special importance in cases of secondary legislation that gives effect to general principles of primary law, such as equal treatment, as the rights contained in that secondary legislation are not exclusively of the legislature's own making.

It is inappropriate, therefore, in cases of secondary legislation that expressly gives effect to general principles in substance, to read the accompanying legislative purpose regarding procedures and remedies narrowly. Prudential avoidance should have little purchase here. Put another way, in such cases it must be presumed that the EU legislature in enacting substantive obligations, intends those obligations to include broad access to effective relief in court. Thus, for example, even where the Working Time Directive, which gives unconditional expression to the substantive right to paid annual leave contained in Article 31(2) CFR, failed to specify that Member States provide effective access to the judiciary, this no longer matters:

Any narrowing construction of such secondary legislation to avoid a difficult constitutional question is thus unwarranted.