The Temporal Scope of the Damages Directive: A Comparative Analysis of the Applicability of the New Rules on Competition Infringements in Europe

Abstract

The transposition period for the Damages Directive (104/2014/EU) ended on 26 December 2016. In terms of its temporal scope, the Directive prohibits the retroactive application of substantive provisions prior to that date but leaves it to the discretion of Member States whether to apply procedural provisions to proceedings initiated at any day after 26 December 2014. This distinction raises two questions: First, what is the legal nature of the Directive’s provisions and which provisions form part of procedural and which of substantive law? Second, is the determination of substantive law provisions as opposed to procedural law provisions a matter of domestic law or EU law? This paper attempts to answer those questions for the Directive’s provisions in relation to the statute of limitations, the burden of proof and the disclosure regime. It argues that the legal nature should be determined by EU law and studies whether Member States’ transposition has deviated from the classification under EU law. The analysis finds divergence in the temporal applicability of the new rules and conflicts with the determination of rules under EU law.