7.1 Introduction

307. For over 2000 years private law has been built upon the idea that private parties have to act honourably and justly, that they should not cause damage to others, and that everyone is given their due. Generally, civil remedies first and foremost aim at restoring patrimonial justice between the parties involved. In the determination of civil remedies proportionality is a basic principle.1 Yet, the term proportionality itself is not commonly used in private law terminology. The principle of proportionality is embedded in open norms of private law. As a Paradebeispiel the open norm of objective good faith – or reasonableness and fairness or equity – can be mentioned, with many equivalents in the various Member States, like redelijkheid en billijkheid, the prohibition of abuse of rights2, Treu und Glauben3, Angemessenheit, Zumutbarkeit, Vernünftigkeit, bonne foi, correttezza, buona fe.4As Stürner states:

Indeed, in private law there is a wealth of equivalent terms embodying an idea of proportionality and striving for a just, balanced outcome.6 This chapter shows that the idea of reasonableness in private law to a large extent reconciles with the idea of proportionality in the realm of the right to an effective and proportionate remedy in Union law. The key reason for this is that in colouring the right to a proportionate remedy, the Court of Justice primarily focuses on the proportionality stricto sensu of the remedy and largely lets go of the other original elements of the proportionality principle. This means that national courts must balance the rights and interests of the private parties involved in the light of the specific circumstances of the case in order to arrive at a proportionate remedy for the infringement in question. The Court of Justice has to some extent framed this assessment by formulating a number of general standards or starting points.7 This chapter constitutes a synopsis of the civil remedies found in the case studies in Part I, and an evaluation of those remedies in the light of the right to a proportionate remedy as coloured by the Court of Justice and discussed in Chapter 6.

308. In a number of cases discussed in Part I the particular infringement of Union law eventually had no impact on the concrete horizontal legal relationship in question. As in these cases there is no intertwining of Union law and civil remedies, they will be left outside the scope of this synopsis.8

Further, because of the transitional periods the rulings of the Court of Justice and the Belgian Cour constitutionnelle in Test-Achats did not have an immediate impact on the legal relationship between insurance companies and policyholders. In other words, the national court did not have to determine a civil remedy in the concrete case. On the contrary, the transitional period adopted in the judgments avoided any immediate impact. The eventual impact of the vertical Test-Achats case on horizontal legal relationships between insurance companies and policyholders was clarified by the European Commission. The European Commission suggested in its Guidelines that the consequences of the ruling of the Court of Justice would apply only to new contracts and revisions of existing contracts insofar as those revisions require a mutual consent.

In the remaining cases, national courts have applied various legal instruments available in private law to determine the legal consequences of the diverse infringements of Union rights in the context of the horizontal relationship between private parties.9 The following sections provide for a synopsis of the various legal instruments discussed in Part I, and an evaluation of the judicial application of these instruments in the cases discussed in the light of the right to a proportionate remedy as discussed in Chapter 6.

309. It is recalled that the principle of procedural autonomy gives Member States freedom in determining the remedies for infringements of Union law in horizontal legal relationships. The latitude of Member States to provide for a remedy for infringements of Union law is limited by the principles of equivalence and effectiveness as well as by the standards that the Court of Justice has formulated in its case law on effective judicial protection.10 As indicated, as regards civil remedies both the legislature and the judiciary are under an obligation to provide for proportionate remedies. This study particularly focuses on the determination of remedies by national courts and hence on the concrete judicial balancing exercise.11 The aim is to gain insight into whether national remedies for infringements of Union law blend in with the standards of effective and proportionate judicial protection laid down by the Court of Justice. This insight is relevant for the answer to the question whether the effective judicial protection of private parties for infringements of rights stemming from Union law in horizontal legal relationships is safeguarded properly, or whether the amalgamation of Union law and national remedies in some respects requires further attention.