6.3.6 Proportionality stricto sensu: a balanced remedy

294. If a measure or remedy is appropriate and necessary (in a narrow sense)1 to achieve the aim pursued, but causes damage to other interests involved, it can still be disproportionate. That is the case if the concrete damages suffered as a result of the measure are excessive in relation to its aim. For example, when the measure unduly prejudices the interests of the party concerned2 or when the measure is not commensurate with the injury suffered3. As indicated in the preceding section, the question on the excessive or the adequate nature of a remedy particularly relates to proportionality stricto sensu.4

Parties bringing a case to challenge a remedy for an infringement of Union law, will usually not argue that a remedy as such – e.g. an administrative fine, the ineffectiveness of a juridical act, or an obligation to pay compensation – is inappropriate or unnecessary, but rather that the concrete application of the remedy is disproportionate in view of their interests.5 Consequently, in case law in which the Court of Justice reviews sanctions or remedies determined by a Union institution or by a Member State – including national courts – the core of the review relates to the proportionality stricto sensu of the measure, be it that the Court of Justice never explicitly uses that term.

295. Whether a civil remedy for an infringement of a right stemming from Union law is proportionate stricto sensu is assessed on the basis of a balancing exercise in which the public and private interests involved in the specific circumstances of the case have to be taken into account.6 It is for the national court that determines the remedy to strike a fair balance.7 As indicated, civil remedies aim to compensate the party whose right has been infringed. In that respect, civil remedies primarily serve a private interest. At the same time, they have a general or public interest too, as they also aim at ensuring the effectiveness of the law, including Union law. In that sense, national courts also have to “think federal”, when assessing infringements of Union law and determining remedies for such infringements.8

In the relatively small number of rulings concerning civil remedies, the Court of Justice has infused a number of rudimentary standards or basic principles into the assessment that national courts have to carry out in order to arrive at a proportionate remedy for an infringement of a rule of Union law. The relevant cases are found especially in the realm of consumer protection law, intellectual property law, labour law and non-discrimination law. On the basis of this small collection of rulings on civil remedies, the following sections discuss a number of rules of thumb for national courts that have to determine a proportionate remedy for an infringement of Union law in a horizontal legal relationship. The rules discussed below either apply mutatis mutandis to civil remedies for infringements of rights stemming from Union law other than those at issue in the particular rulings, or they may serve as a source of inspiration for national courts that have to determine a civil remedy for an infringement of a Union right other than the right at issue in the rulings discussed.