Law and Practice
Elgar Competition Law and Practice series
It is a fundamental principle that, while it creates substantive rights and obligations, EU law depends upon the Member States’ courts to give effect to those rights and obligations. Thus Member States are said to have autonomy in the matter of remedies and procedures, subject to the twin conditions of equivalence (meaning that the conditions for a claim based on an infringement of EU law may not be stricter than those for a claim based on similar national law) and minimum effectiveness (meaning that the conditions may not render the enforcement of rights granted by the Treaty unduly difficult). These conditions are themselves derived from the general obligation on Member States to ensure the effective application of EU law and comply with the obligations imposed by former Article 10 EC, now Article 4(3) TEU. This is the case in the absence of legislation governing the matter. While EU law therefore provides for common rules of substance, the Union legal order does not provide for substantive or procedural rules for the enforcement of EU competition law in private disputes. Furthermore, the ECJ does not have jurisdiction for actions brought by a private party against another private party for damages suffered because of breach of EU competition law. While the ECJ has ruled that the right to the recovery of damages in cases of breach of the EU antitrust rules must be guaranteed as a matter of EU law, it has said itself that in the absence of EU legislation in the field, it is for the Member States and their substantive law to determine the detailed conditions for such a damages claim.
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