Alternative remedies in the private enforcement of Articles 101 and 102 TFEU

Chapter 8 focuses on alternative remedies in the private enforcement of competition law in the EU. To set the context, the general framework of judicial protection of EU law rights is outlined, prominently including the EU law rights to an effective remedy and to equivalent remedies. Thereafter, in order to make the case for private enforcement and for alternative remedies, some limits in the usefulness of public enforcement and of damages actions are examined. The chapter then proceeds to examine the most common alternative remedies, such as restitution, injunctions (at the request of a private party), and declaratory judgments. The availability of alternative remedies is discussed, mainly in light of general EU law requirements on national law and courts but also from the perspective of national traditions and their usefulness in the context of EU competition policy. The main points made are that damages actions, partially harmonised under the Antitrust Damages Directive, are only one example of private enforcement. MS offer many other remedies, and must make them available for infringements of Articles 101 and 102 TFEU in accordance with the EU law right to equivalent remedies. It is also pointed out that, if asked, the Court of Justice is likely to require certain alternative remedies of private enforcement to be available, at least if they are necessary to protect the rights of the applicant in the main proceedings. This would primarily pertain to restitutionary actions, to requests for prohibitive and mandatory injunctions, and to interim relief.