For decades it seemed clear that EC competition law was enforceable effectively at the national level, and ECJ case law has continued to bear this out. In recent years, however, the Commission has been proposing harmonization of national rules of procedure in competition cases, implying that procedural autonomy is insufficient on its own to produce an effective enforcement system in this area. As the authors of this book clearly demonstrate, this suggests a binary system governing the enforcement of EC Articles 81 and 82: namely, that led by the Commission through directives and eventual regulations, and that built on ECJ principles in areas not dealt with by such Community instruments. This book describes and analyzes not only the specific Commission recommendations, but also the manner and extent to which these recommendations are or may be implemented in civil procedure. In particular, the authors consider changes which may be required if these recommendations are incorporated into Dutch and English rules of civil procedure. Also addressed are elements of procedure not mentioned by the Commission but which might usefully be considered in the context of ECJ principles of effectiveness, equivalence and effective judicial protection of rights. At the heart of the study is a detailed analysis of the Commission White Paper on Damages Actions and the Commission Staff Working Paper, both issued early in 2009. The in-depth analysis ranges over procedural aspects of such elements as the following: - standing; - disclosure and access to evidence; - burden of proof; - fault/no fault; - costs of damages actions; - injunctions; - civil versus administrative enforcement; - limitations; - leniency programmes; - collective actions; - confidentiality; and - forms of compensation. Anticipating as it does a looming impasse in European competition law, this remarkable book sheds defining light on the real implications of EC competition law for parties to damages actions, not only in the national systems studied but for all Member States. For practitioners and jurists it offers a particularly useful approach to the handling of cases involving European competition law, and also serves as a guide to current trends and as a clarification of doctrine.

Recital 7 of the EU Directive on the Enforcement of Intellectual Property Rights (Directive 2004/48/EC) argues that 'the disparities between the systems of the Member States as regards the means of enforcing intellectual property rights are prejudicial to the proper functioning of the internal market'. Accordingly, the Directive obliges Member States to seek to achieve 'partial harmonization' of the remedies, procedures and measures necessary to enforce intellectual property law. These obligations provide a minimum standard which must be fulfilled by the Member States in the course of their implementation of the Directive. This book examines the scope of the Member States' obligations to implement the Directive and provides valuable guidance regarding the interpretation of the provisions therein. If there really is, as the European Commission contends, an 'enforcement deficit' in the protection of intellectual property rights by national rules of procedure, then the most effective approach, Cumming shows, is through the principles of legal certainty, full effect, and effective judicial protection. These principles will assist the national court in interpreting the precise meaning of the substantive obligations under the Directive. The three authors' vastly detailed, article-by-article analysis of the fortunes of the IP Enforcement Directive in three EU jurisdictions offers enormously valuable insights into the complex ways Member States respond to Community law, and in so doing provides an important addition to the ongoing inquiry into the nature of the reciprocal tensions between EU law (both judicial and legislative) and the laws of Member States. More than once, the authors argue that implementation is inadequate, either because the pre-existing legislation constitutes inadequate legislation or because the specifically adopted legislation proves to be legally uncertain. Drawing on the tenor of ECJ law that national procedural rules should not present an obstacle to adequate judicial protection, the authors examine the available options for an interpretation of national law which is consistent with the requirements of the IP Enforcement Directive. They further consider whether an eventual claimant, who has suffered loss and damage caused by either the non-implementation or the incorrect implementation the Directive, may bring an action against the State for breach of Community law.The authors present their analyses of the implementation of the Directive in Dutch, English and German national procedure as three separate cases rather than comparatively, as any attempt to compare either the method of national implementation or the degree of adequacy or inadequacy inevitably obscures the essential particularities of each of the three national systems in relation to the Directive. Although this book will repay the study of anyone interested in European law, it will be of special value to practitioners and policymakers engaged in intellectual property law, particularly in EU Member States.