6.3.6.4 Financial compensation may not be purely nominal or predetermined

303. In line with the requirement that the compensation for damages must be adequate, the Court of Justice has held that purely nominal compensation is not enough, and that a predetermined ceiling of compensation is precluded.1 In addition to the requirement that compensation is adequate, this clarification of the right to compensation touches upon the requirement that remedies must also have a real deterrent effect.2 In Camacho the Court stressed that a national court must examine the concrete circumstances of the case, the interests involved, the seriousness of the breach, and the damage suffered by the aggrieved party.3 This means that the simple compensation for a stamp or for travel costs is insufficient, for it is ineffective.4 After all, besides the negative interests, the aggrieved party may have suffered other economic damage too, like positive interests.

304. In Draehmpaehl the Court clarified that in case of an infringement of the right to non-discrimination in employment the amount of compensation is dependent on the question whether or not the discriminated applicant would have obtained the position should the applicant not have been discriminated: applicants who would have obtained the position are entitled to a higher amount of compensation than those who would not have obtained the position.5 These considerations show the precision the Court of Justice wants national courts to practice when they determine a remedy for infringements of the right to non-discrimination: the specific case-related circumstances are essential to determine an adequate remedy.

305. Behr, Cafaggi and Iamiceli have argued that by requiring national courts to take into consideration the elements stipulated in Camacho and Draehmpaehl, the Court of Justice basically infused the determination of the compensation for infringements of Union law with punitive standards – which standards are not unusual in purely domestic cases either.6 However, as a matter of fact, the Court of Justice merely clarifies that damage must be understood as being a broader concept than only expenses incurred7, and that the determination of the damages payable must be examined in light of the concrete circumstances. Although this indeed leaves latitude to national courts to apply punitive standards to the determination of damages payable, it does in my view not necessarily follow from the Court’s wordings that it infuses the determination of compensation for infringements of Union law with punitive standards.