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

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.