6.3.5.2 The civil remedies may not be excessive

293. The question on excessiveness is often bracketed together with the element of necessity. Yet, its application by the Court is inconsistent. The case law of the Court of Justice shows that the question of excessiveness is placed at the interface between necessity and proportionality stricto sensu. In the context of the question whether a measure is excessive,1 the Court usually stresses that “the severity of the sanctions must be commensurate to the seriousness of the breaches for which they are imposed”.2 This may be an objective factor, to which the private interests of the case may be irrelevant. To that extent, the question may be part of the element of necessity. However, the Court has also held that to determine “whether a measure goes beyond what is necessary for achieving its objective and unduly prejudices the interests” of the private parties concerned “that measure must be viewed against its legislative background and account must be taken both of the hardship that it may cause to the persons concerned and of the benefits derived from it by society in general and by the individuals who make up society”.3 In this consideration the element of proportionality stricto sensu, which requires a balancing of both general and individual, case-related interests, is cloaked by the necessity element.4 In general, the case law of the Court shows that the question of excessiveness covers both the second question (alternatives) on necessity and, especially, the proportionality stricto sensu of the measure in question.5 This approach of the element of necessity could be referred to as necessity in a broad sense – namely covering the element of proportionality stricto sensu. It should however be stressed that the Court does not address this question in a consistent way at all. The question on excessiveness of a measure in view of the interests involved is discussed further in the section on proportionality stricto sensu (§6.3.6). Exceptions to this umbrella-approach may exist in relation to measures that are so manifestly excessive in relation to the objective pursued, that without having consideration to the concrete circumstances of a case, a measure can be deemed to go beyond what is necessary to achieve the aim pursued.6