Cross-border private enforcement of community law

Abstract

It is legally more complex to regulate the non-economic aspects of the Single Market, such as a high level of consumer protection, than to ensure market access by operators. The latter can frequently be ensured by the disapplication of national rules obstructing one of the free movements provisions, whereas the former may require the courts to practically redraft a rule of national law. Ensuring compliance with Community standards will depend to a large extent on the willingness of the national courts to creatively construe their domestic law in order to give effect to Community law. Private law sanctions, in particular injunctions, are useful as a policing mechanism in this context. In cross-border situations in particular, civil remedies are potentially effective instruments of enforcement, both for the benefit of private actors and public bodies. The main part of this paper will be a detailed discussion of four illustrative cases, including the Konsumentenombudsman case of July 1997. Before doing so, the legal framework is sketched; afterwards, the most relevant legislative development will be examined