The principle of national procedural autonomy was first voiced by the European Court of Justice (‘the Court’) in its judgment in Rewe (33/76, EU:C:1976:188). There, the Court explained that in the absence of EU law provisions, the exercise of EU law on the national level is governed by the institutional and procedural rules of the Member States. The reliance on national procedural rules is, however, made subject to the condition that the effectiveness and equivalence of EU law is upheld. Effectiveness seeks to prevent a situation in which the national procedural rules would make the exercise of EU law-based rights impossible or excessively difficult. Equivalence requires that the Member State shall not discriminate between claims deriving from national law and claims arising out of EU law. The combination of the absence of procedural provisions at the EU law level and the dual requirement of equivalence and effectiveness recognises national diversity, all the while ensuring a degree of surveillance of national remedial rules by EU law.
The judgement in Courage and Crehan (C‑453/99, EU:C:2001:465) is a prominent example where the Court had to reconcile the effectiveness of what is now Article 101(1) TFEU with national rules on remedies. That case concerned a challenge to the validity of a beer tie agreement and an action for damages for breach of competition law. However, English law did not permit a party to a contract which was liable to restrict or distort competition to claim damages for loss caused by the performance of that contract. The Court held that, since Article 101(1) TFEU conferred an express right for competitors and individuals to claim damages arising from the breach of competition rules directly before the competent courts of the Member States, national rules precluding that right ought to be disapplied for failing to ensure the full effectiveness of Article 101(1) TFEU.
Other instances where the Court found national procedural rules to jeopardise the full effectiveness of EU law arose in Manfredi (C-295/04 to C-298/04, EU:C:2006:461) (which concerned national procedural rules on limitation periods; damages claims for breaches of competition law; and the possibility to apply for interest); Vebic (C-439/08, EU:C:2010:739) (which dealt with the participation of the Belgian national competition authority in review proceedings against decisions adopted by it); Pfleiderer (C‑360/09, EU:C:2011:389) (which related to the interplay between public and private enforcement and the granting of access for private claimants to self-incriminating documents retained by the German competition authority); Otis (C-199/11, EU:C:2012:684) (which recognised the right to claim damages for the infringement of competition rules also for the European Commission); Donau-Chemie (C‑536/11, EU:C:2013:366) (which reviewed national law categorically prohibiting access to certain documents); Kone and Others (C-557/12, EU:C:2014:1317) (where, under national law, compensatory claims relating to damages arising from ‘umbrella pricing effects’ were prohibited); Eturas and Others (C-74/14, EU:C:2016:42) (which dealt with the presumption of innocence and the inference of knowledge of concerted practices); Skanska (C-724/17, EU:C:2019:204) (where the Court required the piercing of the corporate veil to ensure effective damages claims); and Cogeco (C-637/17, EU:C:2019:263) (which concerned national time limits for bringing cartel damages cases).
