6.3.3 Legitimate aim of a civil remedy

286. Measures, including remedies for infringements of Union law, must be appropriate, necessary and proportionate to the objectives legitimately pursued.1 Generally, in the context of effective judicial protection the Court of Justice gives no attention to the precondition that measures must have a legitimate aim. Beyond a doubt, measures that aim to remedy an infringement of Union law have a legitimate aim. That belief is, to say the least, supported by Article 4(3) TEU and Article 19 TEU, which require Member States to ensure effective legal protection in the fields covered by Union law. In addition, many directives on the topic of non-discrimination impose the obligation upon Member States to “introduce into their national legal systems such measures as are necessary to enable all employees who consider themselves wronged by failure to comply with the obligations arising from this Directive to pursue their claims by judicial process after possible recourse to other competent authorities”.2

287. In Marshall II and Paquay the Court of Justice stated that Member States are free to choose between the different solutions suitable for achieving the objective of the directive, depending on the different situations that may arise, and that that objective is to arrive at real equality of opportunity.3 From this consideration it derives that remedial measures that aim to achieve the goal of arriving at equality – either practically or in the form of compensation for damage sustained by unequal treatment – have a legitimate aim. This approach applies mutatis mutandis to each civil remedy that aims at achieving any objective set by Union law. The usually primarily compensatory character4 of civil remedies and the aim to ensure the effectiveness of the right infringed can go hand in hand. That is, civil remedies aim to ensure the effectiveness of Union law either by effectuating the particular right infringed – e.g. nullity, undue payment, unjust enrichment – or by repairing or compensating damage following from the infringement – e.g. civil liability. Alternatively, punitive measures, of either civil, administrative or criminal nature, may also contribute to the effectiveness of Union law by their deterrent effect, and may therefore still have a legitimate aim.