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

Hjärtström, Max LU and Nowag, Julian LU (2019) In Swedish Studies in European Law 12. p.3-18
Abstract
This chapter examines the Damages Directive and the issue of competence allocation between the Union and the Member States, by analysing the degree of comprehensiveness and detail of the Directive as well as future perspectives of full harmonisation on EU level. It is argued that the distinction between minimum
and 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... (More)
This chapter examines the Damages Directive and the issue of competence allocation between the Union and the Member States, by analysing the degree of comprehensiveness and detail of the Directive as well as future perspectives of full harmonisation on EU level. It is argued that the distinction between minimum
and 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. We further argue that
such an analysis is useful since the substantive right to damages, recognised
by the ECJ, is broader than the provisions of the Directive. Accordingly, the
ECJ’s case-law will continue to regulate situations that are not covered by the
Directive itself.
(Less)
Please use this url to cite or link to this publication:
author
and
organization
publishing date
type
Chapter in Book/Report/Conference proceeding
publication status
published
subject
keywords
EU law, Damages, Harmonisation, Private actions, EU Competition law, EU-rätt
host publication
EU Competition Litigation : Transposition and first experiences of the new regime - Transposition and first experiences of the new regime
series title
Swedish Studies in European Law
editor
Strand, Magnus ; Bastidas, Vladimir and Iacovides, C Marios
volume
12
pages
15 pages
publisher
Hart Publishing Ltd
ISBN
9781509922017
9781509922031
9781509922024
language
English
LU publication?
yes
id
d8a27688-154a-42e0-b51e-f57a276821c7
date added to LUP
2019-05-06 13:26:19
date last changed
2025-04-04 14:19:06
@inbook{d8a27688-154a-42e0-b51e-f57a276821c7,
  abstract     = {{This chapter examines the Damages Directive and the issue of competence allocation between the Union and the Member States, by analysing the degree of comprehensiveness and detail of the Directive as well as future perspectives of full harmonisation on EU level. It is argued that the distinction between minimum<br/>and full harmonisation is not particularly helpful. Instead, we suggest an alternative understanding of harmonisation in the area, based on a continuum.<br/>This continuum emerges between Union competences on the one side of the<br/>spectrum, and national procedural autonomy on the other. This new perspective<br/>allows for a better understanding of the current and future functioning<br/>of the Directive, and shows that in certain areas, EU competence provides a<br/>firmer ground for comprehensive regulation, whilst in other areas, more deference to the Member States’ legal orders is necessary. We further argue that<br/>such an analysis is useful since the substantive right to damages, recognised<br/>by the ECJ, is broader than the provisions of the Directive. Accordingly, the<br/>ECJ’s case-law will continue to regulate situations that are not covered by the<br/>Directive itself.<br/>}},
  author       = {{Hjärtström, Max and Nowag, Julian}},
  booktitle    = {{EU Competition Litigation : Transposition and first experiences of the new regime}},
  editor       = {{Strand, Magnus and Bastidas, Vladimir and Iacovides, C Marios}},
  isbn         = {{9781509922017}},
  keywords     = {{EU law; Damages; Harmonisation; Private actions; EU Competition law; EU-rätt}},
  language     = {{eng}},
  month        = {{05}},
  pages        = {{3--18}},
  publisher    = {{Hart Publishing Ltd}},
  series       = {{Swedish Studies in European Law}},
  title        = {{EU Competences and the Damages Directive: The Continuum Between Minimum and Full Harmonisation}},
  volume       = {{12}},
  year         = {{2019}},
}