6.3.6.2 When fundamental rights are at stake, remedies must respect them

297. Given the relevance of fundamental rights and principles to this study,1 it is worthwhile to zoom in on the role of the proportionality principle in fundamental rights cases. In relation to fundamental rights, the Court of Justice usually emphasises that they are not absolute, but must be viewed in relation to their social function.2 This approach ties in with Article 52(1) Charter, which stipulates that fundamental rights – including the right to an effective remedy in Article 47 Charter – can be restricted provided that those restrictions comply with objectives of general interest.3 In addition, in view of the objective pursued, the restrictions may not constitute a disproportionate and intolerable interference impairing the very substance of the right (Wesensgehalt).4 In that respect, the Court of Justice has stressed in a number of cases that “where several fundamental rights protected under EU law are at stake, it is for the national authorities or courts concerned to ensure that a fair balance is struck between those rights”.5 This is required in relation to the assessment of whether or not a right stemming from Union law has been infringed,6 to the implementation and interpretation of directives,7 but also to the determination of remedies for infringements of rights stemming from Union law.

In a number of cases concerning remedies for infringements of intellectual property rights, the Court of Justice provided a fine example of a balancing assessment involving many fundamental rights including the right to effective judicial protection.8 The Court states that the mechanisms for those rights to be balanced are partially contained in Union law and partially in Member State law.9 The particular provisions of Union law have a rather general nature due to the large number of different situations to which they are applicable.10 The same goes for open norms in national private law that may be applicable when a remedy has to be determined for an infringement of a right stemming from Union law. Therefore, it is especially up to the Member States, and national courts in particular, to in individual cases find the balance between the rights and interests involved.11 They must make sure not to rely on an interpretation that is incompatible with the fundamental rights “and the other general principles of Union law, such as the principle of proportionality”.12 The aim is to minimise the interference with the fundamental rights and principles involved.

298. Here, it is interesting to recall the case of Dansk Industri, in which the Court of Justice held that the principles of legal certainty and the protection of legitimate expectations cannot alter the obligation of a national court to disapply national legislation that is incompatible with the right to non-discrimination on account of age.13 With this ruling, the Court implies that in the horizontal proceedings the protection of the right to non-discrimination has precedence over the protection of legitimate expectations.14 The disapplication of the national legislation upon which the employer relied, results in the situation that the employer has de facto acted in conflict with the right to non-discrimination stemming from the Directive and Article 21 Charter, and that the national court must determine an effective remedy for this infringement. As it is the right to non-discrimination that has been infringed in the horizontal legal relationship – by the employer’s refusal to pay the severance fee – the determination of the legal consequences of the disapplication of the problematic national legislation for the horizontal legal relationship must aim to provide effective judicial protection of the right to non-discrimination.15 After all, the Court argues that “where national courts are called on to give judgment in proceedings between individuals in which it is apparent that the national legislation at issue is contrary to EU law, it is for those courts to provide the legal protection which individuals derive from the provisions of EU law and to ensure that those provisions are fully effective”.16 It would be in line with the approach of the Court of Justice in Dansk Industri, Egenberger and Bauer and Broûonn that the principles of legal certainty and the protection of legitimate expectations cannot be invoked to eventually release the private party that relied on the problematic national legislation from any obligation resulting from the disapplication of that legislation – e.g. the obligation to pay the severance fee or compensation in lieu of days of paid leave after all.17 However, considering the preceding obligation of national courts to strike a fair balance between the interests involved, including fundamental rights and principles, the question arises whether Union law would preclude, in such a situation, a national court to mitigate the amount payable by the private party that relied on the inapplicable national legislation or whether the right to non-discrimination could be effectively protected only by the payment of the original amount of the severance fee. In the end, such mitigation could be reasonable or proportionate, but at the same time it could be at odds with the requirement that the remedy must be real, adequate and effective.18