8.6.1 National procedural autonomy: a confined yet useful principle

434. In the absence of remedies prescribed by Union law, the principle of procedural autonomy gives Member States discretion in determining remedies for infringements of Union law in horizontal legal relationships. In this context, the discretion of Member States is confined by the principles of equivalence and effectiveness1 as well as by a number of standards for effective judicial protection formulated by the Court of Justice. As discussed in Chapter 6, the principle of effective judicial protection requires that remedies for infringements of Union law are effective as well as proportionate in the sense that they are appropriate, necessary and proportionate stricto sensu. If a national remedy for an infringement of Union law does not meet those requirements, it has to be upgraded or corrected.2 In the private enforcement of Union law and the upgrading of national remedies to Union-proof standards, national courts are of pivotal importance. They must ensure that they provide remedies that are sufficient to ensure effective legal protection in the fields covered by Union law.3 Mostly, it is up to national courts to determine, in view of the specific circumstances of the case, a proportionate remedy for the infringement in question.4 Further, remedies must be effective, restore the justice between private parties involved, respect fundamental rights and in case of compensation for damages, that compensation cannot be strictly nominal or predetermined.5

435. Although these standards indeed restrict the national procedural autonomy of Member States, they can hardly be said to be unreasonable or too far-reaching. Also, despite the standards laid down by the Court of Justice, the requirement that remedies are effective, proportionate and deterrent still leaves room for interpretation to national courts and legislatures in the determination of concrete remedies for infringements of Union law – i.e. there is not just one remedy that complies with these requirements and that Member State must adopt.6 This is also shown in the case studies in Part I. Therefore, in spite of what has been argued in the literature,7 the limitations of the principle of national procedural autonomy do not at all make that principle useless or illusional.8 As pointed out before,9 the combination of national procedural autonomy and the restrictions imposed on this autonomy by the Court of Justice results in what Reich has called “hybridization of remedies”: remedies that on the one hand are based on national law – e.g. a claim for compensation or nullity – and on the other hand are influenced or even reshaped on the basis of Union law.10 Therefore, the harmonization of the part of Union law that deals with horizontal legal relationships and private law, is a crossbreed of top-down and bottom-up harmonization.11 A close cooperation between national courts and the Court of Justice clearly makes this what Tridimas calls ‘bifurcated system of justice’ prosper: “the interaction between the two branches of the EU judiciary is vital for the effective functioning of EU law”.12

436. The case studies in Part I and the evaluation in Chapter 7 illustrate that within the margins set by Union law, in most cases the national courts remedied the infringements in question with an effective and proportionate remedy that was compatible both with the national coherent system and with the standards stipulated by Union law and the Court of Justice.13 The relatively smooth symbiosis between Union law and private law is owed to the principle of national procedural autonomy in combination with the principles of effectiveness and equivalence and the right to effective judicial protection.

437. It is intrinsic to the discretion of Member States to determine concrete civil remedies for infringements of Union law in horizontal legal relationships that a variety of remedies applies throughout the EU and that similar cases will not necessarily have similar outcomes.14 This is illustrated by the case studies in Part I, which reveal that the outcomes of the specific cases could have been different if, for example, Dutch law would have been applied instead of the law of the Member State where the case took place. For instance, the civil liability regimes of the Member States vary to a considerable extent, not only as regards the specific grounds for liability, but also as regards their criteria and the rules on recoverable of damages.15

438. Taking Angonese as an example, a private party in Italy may find solace in Italian civil liability law, whereas a Dutch private party finding himself in identical circumstances is more likely to draw the short straw.16 Alternatively, if a Dutch court would award damages on the basis of a lost chance, that court could be inclined to arrive at an amount significantly lower than the amount determined by the Italian courts. This is inherent in the application of national practice and national rules on recoverable damages and the calculation of damages too. In that respect I recall the case of Camacho, in which the Court stated that Union law neither requires nor prohibits punitive damages and that “it is for the national legal system of each Member State to set the criteria for determining the extent of the penalty, provided that the principles of equivalence and effectiveness are respected”.17 Needless to say that, in addition, punitive damages have to comply with the principle of proportionality. Lastly, it is recalled that in the realm of antitrust infringements, overcompensation and punitive damages are prohibited.18 It remains to be seen whether the prohibition of punitive damages will spread to more fields of Union law.

439. Not only the conditions of the national instruments applicable may differ per Member State; also the attitudes, practices and competences of national courts that determine the remedies in horizontal proceedings may vary. In Laval the Arbetsdomstolen had to find a solution for the lack of a suitable ground for liability in Swedish law and introduced Article 56 TFEU as a ground for civil liability in Swedish law. The creative, innovative and progressive approach taken by the Arbetsdomstolen in Laval may serve as a source of inspiration to other national courts. Yet, national courts cannot be expected to adopt a similar attitude and to launch Treaty provisions as ‘national’ grounds for civil liability and may choose to be less progressive.19

440. The differences between outcomes and competences, practices and attitudes of national courts are inherent in the system of Union law and the division of competences between the Member States and the Union in respect of matters related to private law.20 Therefore, I do not see it as problematic per se that similar cases may have different outcomes depending on the legal system applicable to their case.21 One of the objectives of the Union is to create “an ever closer Union”. As Collins notes, a closer Union is not the same as an amalgamation of the States.22 Therefore, there is no need for uniform private law and remedies in the Union. Nevertheless, I do see it as a task of the Union to, within the boundaries of its competences, lay down minimum standards for remedies and thus to map out a framework within which Member States can connect infringements of Union law to adequate national remedies or, indeed, upgrade national remedies to Union standards.23 In this process the Court of Justice plays a crucial role.24