Volume 23 (2017) / Issue 2
Subsidiarity, Directive 2014/104 EU, Policy underpinning private enforcement, Commission’s discretion, Impact assessment, Disparity of judicial protection, Forum shopping, Effectiveness of private enforcement, Legislative inertia of Member States, Regulatory competition in private enforcement
The article is concerned with subsidiarity in Directive 2014/104 EU on actions for antitrust damages. After providing an overview of private enforcement of competition law and subsidiarity in EU law, it examines the arguments presented by the Commission in the relevant Impact Assessments. While most of the arguments were based on the need to prevent adverse cross-border effects, of particular interest was the argument that Member States were slow or unresponsive in providing effective measures designed to compensate antitrust victims. Subsequently, it shows that the Commission’s assessment of the underlying problems was discretionary and played a pivotal role before the considerations on subsidiarity were made. On this basis, this article makes the case for subsidiarity to be understood as Member States’ constructive engagement in EU action, rather than constraint on EU action.
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