EU Competences and the Damages Directive: The Continuum Between Minimum and Full Harmonisation

This chapter examines the Damages Directive and the issue of competence allocation between the Union and the Member States, by analysing the degree of comprehensiveness and detail of the Directive as well as future perspectives of full harmonisation on EU level. It is argued that the distinction between minimumand full harmonisation is not particularly helpful. Instead, we suggest an alternative understanding of harmonisation in the area, based on a continuum.This continuum emerges between Union competences on the one side of thespectrum, and national procedural autonomy on the other. This new perspectiveallows for a better understanding of the current and future functioningof the Directive, and shows that in certain areas, EU competence provides afirmer ground for comprehensive regulation, whilst in other areas, more deference to the Member States’ legal orders is necessary. We further argue thatsuch an analysis is useful since the substantive right to damages, recognisedby the ECJ, is broader than the provisions of the Directive. Accordingly, theECJ’s case-law will continue to regulate situations that are not covered by theDirective itself