It’s coming up on 5 years since the EU Damages Directive was adopted, but little over 1 to 2,5 years since it was implemented in the Member States (MS).2 The time is probably upon us to take a step back and look at the big picture and impact of the new regime in the real world.
The experience of the past couple of years has shown that the Directive is on track to achieve its objectives, if we acknowledge it was primarily focused on promoting follow-on actions by undertakings injured by cartels, and on protecting public enforcement. It is, I believe, in the gaps left by the Directive, in the issues MS could not agree on, or did not wish to harmonize, that we have seen the greatest problems and room for improvement.
Luckily, the Court of Justice of the European Union (CJEU) has already taken an active stand in protecting the effectiveness of private enforcement and using general principles of EU Law to fill in some of these gaps and go further than MS intended. But its powers are limited, and some problems do require EU/MS legislative intervention.
Greater degree of harmonization of laws
The first three referrals answered by the CJEU in the post-Damages Directive era have s!-->!-->…