6.2 Remedies must be proportionate

278. The requirement that remedies or sanctions for infringements of Union law are proportionate, applies to all types of remedies – i.e. criminal, administrative and civil. The case law of the Court of Justice contains a variety of alternatives to the term proportionality as an element of effective judicial protection. For example, when a Member State has opted for compensation for damages as a remedy to an infringement, “the compensation must be adequate in relation to the loss and damage sustained”1, or, when a Member State has opted for penalties as a remedy to an infringement, “the severity of penalties must be commensurate with the seriousness of the infringements for which they are imposed, in particular by ensuring a genuinely deterrent effect, while respecting the general principle of proportionality”.2

The Court of Justice has repeated these considerations in cases covering diverse fields of Union law and irrespective of whether the underlying legal relationship to the proceedings was of a vertical or horizontal nature.3 This implies that whenever a remedy for an infringement of Union law is imposed, the remedy has to comply with the principle of proportionality as such. Advocate General Cruz Villalón notes that “in substance, that corresponds to the rule in Article 52(1) of the Charter, under which limitations must be necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others”.4 The Court of Justice has accepted the direct application of the proportionality requirement in Article 52(1) Charter to horizontal legal relationships and remedies for infringements of rights that Union law confers upon private parties.5 Yet, the principle of proportionality is an open norm and the term proportionality is insignificant: it indicates what it ultimately strives for rather than what steps need to be taken to reach a proper equilibrium in a concrete case.6 This means that, in relation to the right to a proportionate remedy for an infringement of a right stemming from Union law, the concretization of what a proportionate remedy is, requires a concrete palette of facts, legal norms and interests in the specific context.7 From the Court of Justice’s case law a number of elements of the principle of proportionality can be derived. After a short introduction to the general principle of proportionality in Union law8, the following section discusses the principle of proportionality in case law concerning civil remedies for infringements of Union law.