II.0 Introduction to Part II

265. Van Gerven notes that “it will be apparent […] that the concept of proportionality is used in a variety of situations, which in turn accounts for the diversity and pluriformity of the concept itself”.1 The principle of proportionality in Union law is versatile, polymorphous and has a wide scope of application.2 As demonstrated in Part I, the principle serves, amongst others, as a standard for judicial review of legislation and administrative acts of the Union3 and its Member States4. In addition, the question whether a private party has infringed a fundamental freedom or a fundamental right also requires the balancing of rights and interests on the basis of the proportionality principle.5

According to Article 47 Charter, any private party upon whom Union law confers a right, has the right to effective judicial protection in case that right is infringed. The right to effective judicial protection encloses the right to a remedy that is effective, proportionate and dissuasive.6 Part II is dedicated to the proportionality of the civil remedies used in and concrete outcomes of the case studies in Part I. Part II shows that the application of the principle of proportionality in the context of effective judicial protection of Union rights in horizontal legal relationships is different from the application of proportionality as a mechanism for determining whether or not Union law has been infringed. Chapter 6 explores the right to a proportionate remedy as an element of effective judicial protection in cases falling within the scope of Union law. The chapter particularly focuses on the role of proportionality in civil remedies for infringements of Union law. The current set of legislative instruments and the number of cases that concern the effective judicial protection by means of civil remedies is limited. Therefore, Chapter 6 provides for a framework in the making, rather than for a crystallized set of criteria and guidelines that civil remedies have to comply with. The chapter illustrates that the principle of proportionality in Union law is polymorphous and inconsistently applied by the Court of Justice. Subsequently, Chapter 7 provides for a synopsis and evaluation of the remedies discussed in Part I. Building upon Chapter 6, Chapter 7 evaluates whether and to what extent those remedies and the concrete outcomes indeed reflect expressions of proportionality and whether they comply with the current framework provided by the Court of Justice and the Union legislature. Together, Part I and Part II form the steppingstone for Chapter 8 (Part III), which presents a critical overview of a number of challenges and points of attention following from the case studies and the evaluation of the remedies found.