Private Enforcement with Bernardus Smulders (Court of Justice of the European Union) and Jérôme Philippe (Freshfields)

In this new episode, Bernardus Smulders (Court of Justice of the European Union) and Jérôme Philippe (Freshfields) opened the Private Enforcement in the EU Conference that occurred in Paris on the 2nd of April 2026.

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Key takeaways of Bernardus Smulders (Court of Justice of the European Union) speech "Recent CJEU Case Law on Private Enforcement: Structure, Limits and Emerging Trends":

- The Court’s case law structures private enforcement around four key areas: third-party funding, limitation periods, jurisdiction and applicable law, and access to evidence.

- On third-party litigators, the Court holds that national rules cannot block claim assignments where no effective alternative exists and individual actions are excessively difficult.

- On limitation periods, the Court requires that time limits do not start before the infringement has ended and before the victim can reasonably know the key elements of the claim.

- In Nissan, the Court clarifies that the limitation period starts only once the national authority’s decision becomes final, since only then does it bind national courts.- On jurisdiction, the Court adapts traditional rules to collective and digital cases by allowing courts to rely on the affected market as a whole.

- In multi-defendant cases, jurisdiction can be centralized if claims are closely connected in order to avoid inconsistent judgments.

- On access to evidence, the Court introduces a flexible plausibility test that requires a credible claim while preventing abusive disclosure requests.

- Overall, the case law shows a consistent reliance on the principle of effectiveness and a growing role of the Court in clarifying gaps in EU legislation.