Safeguarding the Restraint of Trade Doctrine from EU Competition Law: Identifying the Threat and Proposing Solutions

The EU Council of Ministers is currently considering a Directive on actions for financial damages for infringements of EU competition law. The directive intends to encourage private litigation in national courts where either Art 101 TFEU and/or Art 102 TFEU have been infringed. Art 101 TFEU prohibits anti-competitive arrangements and Art 102 TFEU prohibits the abuse of a dominant position. While the EU directive has been drafted with the involvement of powerful competition law epistemic community of academics and practitioners, little attention has been paid to the implications of increased private litigation of EU competition law for the operation of national law. By taking the perspective of national law, this article examines difficult questions regarding the interface between EU competition law and national law, in particular the Restraint of Trade Doctrine (ROTD), where both legal regimes concurrently apply to a restrictive clause but produce different outcomes.