In an open access article published in the Revue des affaires européeenes/Law & European Affairs Review, Associate Édouard Bruc provides an overview and practical insight into the EU concept of direct effect and how it can be useful to attorneys and in-house counsel in the context of antitrust law, and in particular private enforcement (with some comments on the Digital Markets Act).
Excerpt: “Alongside academics, public authorities, Union institutions, advocate generals, judges, and others, practitioners have helped to build the Union’s legal order. From the seemingly farfetched ideas that pop into their heads as they try to solve their clients’ problems, to the meticulous written and oral submissions they make to the courts, they have shaped and, sometimes and to a certain extent, molded the concrete meaning of the rules to their liking. Together with other stakeholders, they set the law in motion. And so it is with direct effect.”
Édouard has classified these opportunities into different groups: (i) direct effect of treaty provisions; (ii) regulatory direct effect of clear provisions included in regulations and directives that overrule national law; and (iii) direct effect of EU fundamental rights and principles that override national law and/or give self-standing rights. For each of these, an overview of the applicable principles and a number of interesting legal precedents are provided. Pertinently, as far as fundamental rights are concerned, the quasi-criminalization of antitrust law has increased the need to ensure rigorous respect for these rights, which have hitherto received little attention. He emphasises how they may, in turn, offer promising new opportunities.