EU Competences and the Damages Directive: The Continuum Between Minimum and Full Harmonisation

Magnus Strand Vladimir Bastidas, Marios C Iacovides, EU Competition Litigation, Swedish Studies in European Law (Hart Publishing 2019), Forthcoming

LUND UNIVERSITY LEGAL RESEARCH PAPER SERIES, LundLawCompWP 2/2019 May 2019

16 Pages Posted: 6 Jun 2019

See all articles by Max Hjärtström

Max Hjärtström

Lund University

Julian Nowag

Lund University - Faculty of Law; Oxford Centre for Competition Law and Policy

Date Written: August 31, 2018

Abstract

The paper examines the Damage Directive and focuses accordingly on the issue of competence allocation between the Union and the Member States. It examines the degree of comprehensiveness and detail of the Directive, as well as future perspectives of exhaustive harmonisation on EU level. It is argued that the distinction between minimum and maximum (or full) harmonisation is not particularly helpful. Instead, we suggest an alternative understanding of harmonisation in the area, based on a continuum. This continuum emerges between Union competences on the one side of the spectrum, and national procedural autonomy on the other. This new perspective allows for a better understanding of the current and future functioning of the Directive, and shows that in certain areas, EU competence provides a firmer ground for comprehensive regulation, whilst in other areas, more deference to the Member States’ legal orders is necessary. The first part of this paper examines the judge-made right to compensation for loss suffered as a result of antitrust harm, and shows that the Directive is, by and large, seen as a form of minimum harmonisation. The second part then highlights why this characterisation seems problematic, introduces the continuum and explains the rationale for greater or lesser intrusion on the part of the EU. The concluding section finally provides an outlook as to what action could be expected from the EU based on the continuum-approach.

Keywords: EU competition law, private enforcement, harmonisation, damages

Suggested Citation

Hjärtström, Max and Nowag, Julian, EU Competences and the Damages Directive: The Continuum Between Minimum and Full Harmonisation (August 31, 2018). Magnus Strand Vladimir Bastidas, Marios C Iacovides, EU Competition Litigation, Swedish Studies in European Law (Hart Publishing 2019), Forthcoming. Available at SSRN: https://ssrn.com/abstract=3383613

Max Hjärtström (Contact Author)

Lund University ( email )

Box 117
Lund, SC Skane S221 00
Sweden

Julian Nowag

Lund University - Faculty of Law ( email )

Lilla Gråbrödersgatan 4
Lund, 222 22
Sweden

Oxford Centre for Competition Law and Policy ( email )

St Cross Building
St Cross Road Oxford
Oxford, OX1 3UL
United Kingdom

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