Edited by Paula Giliker
Chapter 3: Compensatory remedies in EU law: the relationship between EU law and national law
This chapter investigates the complex interaction between EU law and national rules on compensatory remedies. It starts by explaining the problems lying behind the use of the label of ‘EU tort law’, which is not a recognised category and generates confusion unless some independent definition of the concept of ‘tort law’ is selected. The chapter proposes to define ‘tort law’ by reference to the function of the examined rules, and in particular to the function of regulating compensatory remedies. Following this definition, the chapter discusses the different ways in which EU law regulates compensatory remedies; first, by looking at EU competence to regulate compensatory remedies in its two guises, legislative and judicial, and then by examining the different modes in which the EU regulates compensatory remedies. It argues that these modes could be classified in a three-fold manner: 1) as involving complete harmonisation, 2) as involving only partial harmonisation, where national provisions constitute gap-fillers and/or provide residual rules, and 3) as involving only rudimentary harmonisation, where EU law provides merely regulatory standards and the link between their breach and a compensatory obligation is established by national law. In terms of the substantive content, the chapter looks at EU rules governing damages actions for breach of competition law, liability for damage caused by products, the Francovich remedy, damages for infringements of intellectual property rights, and the relevant rules in consumer Directives. The chapter concludes by discussing briefly the consequences of codifying private law at the EU level for the continued applicability of national rules on compensatory remedies in the sphere covered by the ‘scope of EU law’.
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