6.3.4 Appropriateness of a civil remedy

288. Member States have, to a greater or lesser extent, discretion in deciding the type and character of measures – restorative, compensatory, punitive, administrative, criminal, civil – and neither of these type of measures are a priori precluded by Union law.1 In any event the remedy or combination of remedies chosen must be appropriate – or suitable – to achieve the aim pursued.2 This element of the proportionality principle can be explained in terms of effectiveness3 and is therefore interlocked with the first element of the principle of effective judicial protection that a remedy must be effective. An ineffective remedy cannot be proportionate (in a broad sense) as the remedy would miss its objective of either effectuating the right at stake or of compensating the fact that the right cannot longer be effectuated in the concrete circumstances – such a remedy would not be appropriate.

In the realm of discretionary policies, the requirement of appropriateness hides a considerable limit on the scope of judicial review. When Member States have a considerable degree of latitude and freedom of choice the Court of Justice is fairly reluctant to determine that a measure is not suitable to achieve its objective.4 Only when a measure is clearly inappropriate to meet the objective of remedying or sanctioning an infringement of Union law, the Court of Justice may disapprove of it.

The judgment in Feryn, a case on discrimination on account of racial or ethnic origin, illustrates the liberal approach taken by the Court of Justice as regards the appropriateness of sanctions for infringements of rights stemming from Union law: sanctions that in one way or another contribute to the effectiveness of the right infringed are likely to have the Court’s blessing. The Court of Justice was asked what sanctions are appropriate for employment discrimination established by the employer’s public statements.5 There was no real, identifiable victim, but the Centre for equal opportunities and combating racism6 brought proceedings to the company whose director had publicly confirmed not to recruit ‘immigrants’.7 In five short paragraphs the Court recalls the obligations which rest upon Member States to provide for measures that are sufficiently effective to achieve the aim of the directive, the elements of the right to effective judicial protection, and the fact that Member States are free to choose between the different solutions suitable for achieving the objective of the relevant directive.8 Subsequently, the Court holds:

Basically, the Court of Justice gives a number of suggestions as to what measures could be appropriate to sanction the discrimination at hand. However, the Court does not generalise the appropriateness of the measures mentioned in relation to remedying an infringement of the right to non-discrimination. On the contrary: the Court does not elaborate on the element of appropriateness as such, and leaves it to the national court to determine which measure is “appropriate to the situation in the main proceedings”. A national court must therefore assess which remedy is (most) appropriate in view of the circumstances of the case at hand. Such an assessment reflects the element of proportionality stricto sensu (see §6.3.6 below), which – on the basis of this approach – is apparently decisive for the answer to the question whether a remedy is appropriate.