The Impact of the Damages Directive
Edited by Pier L. Parcu, Giorgio Monti and Marco Botta
Chapter 3: Liability issues not codified by the Damages Directive: how to fill such gaps?
The chapter explores the liability aspects that have not been harmonised by the Damages Directive, namely the need for the plaintiff to prove the presence of injury and fault by the defendant, as well as the liability of the parent company, calculation of the interest rate and the possibility for the national court to award punitive damages. Secondly, the chapter discusses how national courts may in the future ‘fill the gaps’ in relation to the non-harmonised issues. Rather over-burdening the Court of Justice via a large number of preliminary ruling requests, the chapter argues in favour of judicial DIY (i.e. ‘do it yourself’). By actively applying the principles of equivalence and effectiveness, in fact, national courts could achieve the same interpretation as that provided by the Court of Justice via its preliminary rulings. Finally, the chapter argues in favour of a reform of the current system of preliminary rulings, where a Member State could be subject to State liability if its last instance court does ask for a preliminary ruling.
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