6.3.6.3 Financial compensation must be adequate

299. In line with the above, financial compensation for damages may as such be an appropriate measure, but whether or not the compensation for damages results in effective judicial protection depends upon the amount of damages payable. From a series of cases on the right to non-discrimination it can be derived that when Member States opt for financial compensation as a remedy for an infringement of the right to non-discrimination, the amount “must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules”1. What is and what is not “loss and damage actually sustained” can be subject to diverse interpretations depending on which Member State law is applied. For example, under Dutch law economic and pecuniary damage (vermogensschade; materiële schade) is a broad term, which includes both actual losses, lost income, and expenses made. In addition to economic damage, non-economic or non-pecuniary damage (immateriële schade) is recoverable under Article 6:106BW in conjunction with Article 6:98BW. Under the Dutch regime, a party that sustains damages from an infringement of the right to non-discrimination must provide evidence on the losses and damages actually sustained. The national court called upon assesses whether and to which extent those losses and damages indeed result from the infringement in question and, on the basis of that assessment, determines the amount payable.

300. There are however also Member States in which the recoverable damages – in case of discrimination or in general – are subject to a strict(er) regime. In those Member States, the requirement of the Court of Justice that the losses and damages sustained as a result of an infringement of Union law must be made good in full has a stronger impact than in Member States that have a regime similar to the regime under Dutch law. By way of example, under German law certain infringements of the right to non-discrimination could be remedied only by the recovery of the so-called negative interest of the aggrieved party – i.e. expenses incurred.2 The positive interests of a party that was discriminated would not be taken into account in the determination of the damages payable, which would therefore limit their right to compensation.

301. In a number of cases the Court of Justice has shed light on the question which damages are included under “loss and damage actually sustained” and, as a result, which damages must be made good in full. The next section discusses the cases in which the Court of Justice clarified what it includes under economic damages and that predetermined or purely nominal damages do not meet the requirement of proportionate and effective judicial protection.

302. Lastly, it is likely that non-pecuniary damages are also included in the right to compensation for other infringements of Union law. Concerning such damages, Advocate General Wahl argues that “it seems an almost universally accepted principle that the damage that an individual may suffer as a result of an unlawful act on the part of another individual, and which must be compensated, may in principle also include damage which goes beyond mere pecuniary loss”.3 Moreover, the Court of Justice has repeatedly held that damage that must be compensated by the European Union in cases of extra-contractual liability on the basis of Article 340 TFEU includes non-pecuniary damage.4 Logically, non-pecuniary damages must be compensated in other cases and legal relationships too.5 In relation to the right to compensation for lost holidays in a horizontal legal relationship, the Court of Justice has ruled that also non-pecuniary damages are recoverable.6 In that context, Reich rightly poses the question why a frustrated holiday tourist should be treated better than a person suffering from discrimination.7