6.3.5.1 Civil remedies are necessary

290. Infringements of Union law in a horizontal legal relationship can in principle be remedied by civil, administrative and criminal measures. Generally, the element of necessity is denoted especially in relation to the question concerning the existence of less onerous alternatives, which could be referred to as necessity in a narrow sense.1 This question can be quite a hurdle: what should be regarded as “an alternative”, from which perspective, and how much latitude do Member States have to determine this? Measures may be considered to be alternative to each other if they at least have an equal degree of effectiveness as regards the right infringed. The requirement that the remedy must ensure the effectiveness of the right infringed however limits the freedom Member States have in determining the remedies for infringements of rights stemming from Union law in horizontal legal relationships. After all, exclusively imposing an administrative or criminal sanction upon the perpetrator would not benefit the party whose right was infringed in any way. Remedies for infringements of Union law in horizontal legal relationships must therefore include a civil remedy by which the infringement is undone, or by which the aggrieved party receives compensation for damages. For example, the Court of Justice ruled that in the event of a discriminatory dismissal “a situation of equality could not be restored without either reinstating the victim of discrimination [I.A: ineffectiveness of the dismissal] or, in the alternative, granting financial compensation for the loss and damage sustained [I.A.: civil liability]”.2 By analogy, this approach applies mutatis mutandis to all horizontal legal relationships in which a right stemming from Union law has been infringed. Member States thus must provide for civil remedies for infringements of Union law in horizontal legal relationships. Only if there are alternatives that are as effective for the party whose right is infringed and less onerous for the perpetrator, the measure at hand may not survive this limb.

291. That being said, with the ruling in Åkerberg Franssonin mind, it is not at all excluded that in addition to the civil remedies, a Member State opts for a punitive sanction as well.3 For example, in case a private party has discriminated another private party on whichever ground, the discriminated party can claim compensation for damages. In addition, the Member State can impose an administrative fine upon the perpetrator, but, again, only if such a sanction would not go beyond what is necessary to achieve the objective pursued. Also, the ne bis in idem principle (Article 50 Charter) has to be respected.4 In that context it is important to notice that the Court has held, in line with common notions on the objectives of public and private enforcement of law, respectively, that “a measure which merely repairs the damage caused by the offence at issue is not criminal in nature”5. That means that a civil remedy with a restorative or compensatory character can for example be combined with a punitive measure of administrative or criminal nature. This is demonstrated in the field of competition law: the European Commission or a national competition authority can impose fines on companies that act in conflict with for example Article 101 TFEU, and at the same time private enforcement of this provision may result in civil liability and in the nullity of agreements that are incompatible with Article 101 TFEU.6

292. Lastly, it could occur that in a specific case there is a choice between a number of civil remedies. In such an event, national – or in some cases European – rules on concurrence and primacy of civil remedies must be applied.7 It goes beyond the scope of this study to elaborate upon rules on concurrence. Whichever rules of concurrence may apply in a Member State, in the context of a case that falls within the scope of Union law, those rules must be applied with a view to the general principles of Union law, including the principle of effective judicial protection and the principle of proportionality, and thus comply with the condition that from a series of alternative remedies the least onerous remedy must be chosen.