This paper, which can be found here, focuses on how four small EU Member States (Belgium, Latvia, Lithuania, and Luxembourg) transposed the various provisions of the Damages Directive, and on the challenges these countries faced in their attempt to align the Directive’s provisions with their national legal orders. It looks at the transposition of the Directive as regards the following topics: (i) the right to compensation; (ii) disclosure of evidence; (iii) effect of infringement decisions; (iv) limitation periods; (v) joint and several liability; (vi) passing on defences; (vii) presumption and quantification of harm; and (viii) consensual dispute resolution.
The paper is quite detailed and descriptive, so it would be otiose to review how transposition occurred in the sampled countries as regards each of these topics. Suffice to say that the paper provides a good overview of some technical and linguistic obstacles these countries faced when transposing the Directive, as well as of the main challenges in aligning the Directive’s provisions with national rules.
For me, the most interesting part of the paper concerns the authors’ discussion of distinct possible ways of transposing the Directive. First, the countries could merely copy some provisions of the Directive in a different language. In addition, countries could choose between a minimalistic transposition which would broadly correspond to simply translating the relevant provisions of the Directive – in line with the minimum harmonisation set out in the Directive – or seek to further densify the relevant provisions. A second approach, adopted mainly by the ‘older’* small countries (i.e. Belgium and Luxembourg) displayed more confidence in their national legal systems, namely in their general rules of tort law relating to damages. These countries were ‘selective’ in relation to which provisions of the Directive should be transposed, and how. They were also more confident in densifying the Directive provisions under national law and in extending their scope of application (e.g. in Belgium the presumption of harm applies to both horizontal and vertical collusive practices).
* I am merely following the authors’ language in using this expression/distinction.