6.3.2 Determining remedies: a curtailed proportionality assessment

283. Measures provided in national law to remedy infringements of Union law must “adequately reflect the severity of the infringement”1, and “must not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by those measures”2 [Emphasis added: I.A.]. Further the Court of Justice has held that “where there is a choice between several appropriate measures, recourse must be had to the least onerous measure, and the disadvantages caused must not bedisproportionate to the aims pursued”3 [Emphasis added: I.A.]. Altogether, these considerations reflect the complete set of elements of the general principle of proportionality as discussed above.

284. The requirement that a civil remedy is proportionate has to be respected by the legislature and the judiciary of Member States.4 The legislature must provide for an appropriate system of remedies, insofar as the existent regime of remedies does not suffice. In reviewing or determining civil remedies national courts have an essential role in guaranteeing the proportionality of the remedy. As indicated, in case a Member State has chosen to make good damage suffered as a result of a breach of Union law by means of civil liability of the perpetrator, the compensation that is awarded on the basis of this liability must be adequate in relation to the damages suffered, taking into account the specific circumstances of the case.5 As a consequence, the amount of compensation for such infringements can in principle not be a statutorily predetermined or limited amount.6

285. In the event a national court doubts that a civil remedy for an infringement of Union law complies with the principle of proportionality, it can – in theory – refer a preliminary question to the Court of Justice. Before discussing the elements of the proportionality principle in the case law concerning the judicial review of specific remedies in Member State law, three preliminary remarks should be made.

Firstly, the following sections concentrate on case law in which the Court of Justice reviews the compatibility of civil remedies found in Member States and determined by national courts in horizontal proceedings, with the right to effective judicial protection and the principle of proportionality. Cases in which the Court of Justice reviews administrative and criminal remedies and sanctions adopted and determined by the Member States or by the Union are discussed only when essential. The number of cases in which the Court of Justice has delivered a preliminary ruling on the question whether or not a civil remedy in domestic law was in compliance with the right to effective judicial protection and the principle of proportionality is fairly small.7 In the list of cases on effective judicial protection, by far most cases concern the procedural dimension of the right to effective judicial protection, relating to for example limited access to judicial review of an administrative decision, the impossibility of a private party to appeal a judicial ruling, time-limits and so on.8 Also, a considerable amount of cases are appeal cases relating to fines imposed on companies by the European Commission for infringements of EU competition law.9 A number of cases relate to administrative sanctions taken to remedy infringements of Union law by private parties in the realm of taxes, customs, agriculture or fishing.10

Secondly, irrespective of the nature of the case – horizontal or vertical – and the specific subject-matter in the realm of effective judicial protection, the case law shows that the Court of Justice rarely pays attention to the principle of proportionality in full splendour; the proportionality assessment is considerably curtailed. Usually, the Court focuses on one or two elements. Which elements the Court focuses on depends on the subject of the review. For example, when a statutory remedy as such is the subject of judicial review, the Court of Justice assesses particularly the appropriateness and the necessity of that remedy (§6.3.4 and §6.3.5). In most cases, Member States have a margin of discretion in determining the sanctions for infringements of Union law. The more latitude Member States have, the more lenient the proportionality test from the perspective of the Member State. As a result, the legislative framework of remedies chosen by Member States is usually not problematic. However, when the Court of Justice reviews a specific application of a remedy in a concrete case, the Court focuses particularly on the proportionality stricto sensu of the concrete outcome in view of the party interests involved in the specific circumstances of the case. In the Court’s case law in the realm of the right to an effective remedy, proportionality stricto sensu is the element of the proportionality principle that receives most attention (§6.3.6) – be it that the Court of Justice never explicitly uses this term.

Thirdly, in cases concerning the compatibility of a domestic statutory remedy as such with Union law, the Court of Justice sometimes carries out the compatibility review itself11, although it is actually for national courts to carry out such a review.12 However, in cases concerning concrete applications of statutory remedies, the Court of Justice usually only gives guidance to national courts as to how to apply the elements of the principle of proportionality, rather than carrying out a proportionality test itself. The Court of Justice makes suggestions and provides for alternative options, but usually leaves the real assessment in the specific case to the national court, because this court has knowledge of all the relevant circumstances of the concrete case. That knowledge is essential to assess whether or not a concrete remedy complies with the principle of proportionality.13