The application ratione temporis of the Directive's provisions and conflicting limitation periods under national laws

Abstract

Chapter 5 focuses on the Antitrust Damages Directive prohibition on the application of national rules implementing its substantive provisions prior to their entry into force. Simultaneously, it grants Member States discretion over whether to apply procedural provisions to proceedings initiated on any day after 26 December 2014. However, the Directive does not specify the legal nature of its provisions, nor whether the classification of their legal nature should be governed by national or EU law. This chapter addresses those and other questions in relation to the Directive’s provisions on limitation periods, the burden of proof, joint and several liability, and the disclosure regime. The discussion focuses, in particular, on the limitation periods to show that those provisions form part of substantive law and, therefore, cannot be applied retroactively. The national rules that existed prior to the Directive remain applicable in many damages’ actions, which are often not as favourable to injured parties as the Directive’s provisions. EU primary law and the principle of effectiveness nevertheless require national courts to guarantee a minimum standard, which could lead to the convergence of national rules even before all of the Directive’s provisions become applicable.