8.1 Introduction

342. The effectiveness and effective judicial protection of Union law strongly depend on the existence of remedies for infringements of Union law. Infringements of Union law in horizontal legal relationships are primarily governed by national law, be it that certain instruments of Union law outline minimum requirements for remedies and the Court of Justice has formulated basic standards for a number of civil remedies.1 Partly due to the open character of the right to an effective and proportionate remedy and the standards laid down by the Court of Justice, the remedies determined by the national courts in the cases discussed above comply with those norms, in particular as regards the restoration of an unjust (patrimonial) situation of a party whose right has been infringed, the protection of a weaker party, the role of fundamental rights in the determination of a proportionate remedy, and the financial compensation for infringements of Union law.2 In that respect, the open character of the norm of proportionality and the standards formulated by the Court of Justice are in tune with norms of private law – including open norms – on the basis of which concrete legal consequences are determined.

343. Part I illustrates which remedies in national law can apply to various infringements of Union law in horizontal legal relationships: in Angonese a juridical act was null and void, and the Cassa di Risparmio was held liable to pay damages for Angonese’s loss of a chance; in Laval the collective actions were deemed unlawful and the trade unions were held liable to pay damages; as a result of Mangold, fixed-term employment contracts were modified as regards their termination date;3 in Kücükdeveci and the related cases discussed in Chapter 4 the respective employers were confronted with the obligation to pay an amount equivalent to the wages for the extension period for the term for notification in order to adhere to Union law. In sum: in most cases the infringed rule of Union law was effectively protected by the civil remedy governed by national law of the Member State in which the case took place, either by effectuating the right at stake or by providing for compensation for damages.

344. Part II demonstrates that the remedies applied grosso modo comply with the rights and standards laid down in Union law and formulated by the Court of Justice in the context of the right to an effective and proportionate remedy. In abstracto, the remedies discussed are, as such, proportionate in relation to the nature of the right infringed and the interests it aims to protect. In line with the case law of the Court of Justice, the remedies determined by the national courts focus particularly on the effectiveness of Union law and the right to effective judicial protection. Both the Court of Justice and most of the national courts in the cases discussed pay no attention at all or fairly limited attention to the position and interests of the party that infringed Union law. Such a rather one-dimensional approach can be problematic – and even unreasonable or undesirable4 – in view of the interests of a private party that has unconsciously infringed Union law and is subsequently confronted with a new obligation vis-à-vis the party whose Union right was infringed. Hence, the focus on the effectiveness of Union law can in concreto result in remarkable situations or even debatable outcomes.

345. All in all, from Part I and Part II it can be derived that today’s corpus of rules on the effects of Union law and on remedies for infringements of Union law in horizontal legal relationships is an unfinished patchwork, with gaps, irregularities and flaws. Starting from the observations made in the previous chapters, this chapter provides a critical overview of the most salient gaps, irregularities and flaws of the current patchwork. The primary aim of this chapter is to draw attention to the challenges and subjects for debate in the situation as it stands, and to set out lines for discussion for further research on the development of a more coherent approach towards the effect of Union law in horizontal legal relationships and the remedies for infringements of Union law in such relationships.

346. First, §8.2 discusses the challenges concerning the delicate relationship between effectiveness of Union law and the protection of legitimate expectations. Secondly, §8.3 elaborates upon the challenges of the current justification regime for private parties. Subsequently, §8.4 leaves the realm of horizontal legal relationships to discuss the issue of Member State liability, because this is a topic that is relevant and closely related to the cases discussed in this study. It is shown that it is difficult for private parties to bring a successful claim against the Member States for compensation for damages suffered in cases like the ones upon which this study is based. Then, §8.5 demonstrates that the fact that heterogeneous regimes apply to Member States and private parties can lead to different outcomes in comparable cases. Lastly, in the context of the principle of procedural autonomy, §8.6 sheds light on the questions that exist as concerns the roles of the Court of Justice and national courts concerning the determination of remedies for infringements of Union law in horizontal legal relationships.

347. That being said, this chapter builds upon the following premises: (a) the current state of events as regards the effect of Union law and the remedies for infringements of Union law in horizontal legal relationships is incoherent and lacunal; (b) considering the division of competences between the Union and its Member States the patchwork of rules concerning the effect of Union law and remedies for infringements of Union law in horizontal legal relationships is and will be comprised both of patches rooted in Union law and of patches that have their origin in national law; (c) both from the perspective of the effectiveness and effective judicial protection, and from the perspective of national law practice, it is desirable to arrive at a harmonious and aligned patchwork of rules, the various patches of which are smoothly attuned to one another. When the requirements under Union law become clearer, national legislatures know if and where they should take action, and parties, legal practitioners and national courts can more easily decide which national remedies to apply in order to comply with the Union rules and principles of effective judicial protection. As a logical consequence of such a harmonious and aligned patchwork, the effectuation and protection of the rights that Union law confers on private parties will be smoother than under the current lacunal patchwork. In that sense, each Member State develops its own patchwork in which it interweaves national remedies with rules and principles of Union law; (d) In this context, the uniformapplication of remedies for infringements of Union law in horizontal legal relationships is not an aim: provided that all national remedies comply with the basic standards set in Union law, it is not problematic if differences between Member States exist as regards concrete remedies for infringements of Union law;5 (e) responsibilities of Member States should not be furtively shifted to private parties; and lastly (f) for a harmonious and aligned patchwork to develop, a trialogue between the Court of Justice, national courts and legal practitioners is essential.6 All actors involved have to cooperate and contribute to building a coherent, effective and proportionate system of judicial protection of rights stemming from Union law.