ECJ case law on effective, proportionate and dissuasive remedies
| Author | Christa Tobler |
| Profession | European Network of Legal Experts in the non-discrimination field |
| Pages | 8-16 |
Page 8
As Malmberg et al. (2003:225) observe, it is the European Court of Justice (ECJ) which has been the driving force in the development of the requirement for national systems of remedies in the enforcement of EC law. The concept of effective, proportionate and dissuasive remedies has its historic origin in EC sex equality law, although the Court later declared this to be generally relevant. Indeed, it will be shown below that the statements made by the Court in the context of sex equality law are of a general nature. Accordingly, they are also relevant outside this particular context (Tobler 2004).
The most recent generation of EC non-discrimination legislation expressly mentions the duty of the Member States to set up a system of remedies.5 However, the right to a remedy existed even before the adoption of such explicit legislation as a result of the Court of Justice's case law concerning Art. 6 of the Second Sex Equality Directive. In its original version,6 the Directive merely stated a procedural right to judicial process in the case of alleged discrimination. In her opinion on the leading sex equality case on remedies, von Colson and Kamann,7Advocate General Rozès stated that provisions such as Art. 6 'suggest that a breach will not remain unpunished by national sanctions' (para. 2(b) of the AG's opinion). In other words, in addition to a procedural remedy such provisions imply the existence of a right to a substantive remedy. The Court of Justice agreed, holding that it follows from the purpose of the Directive and more specifically from Art. 6 that '[i]t is impossible to establish real equality of opportunity without an appropriate system of sanctions'8 and that victims of discrimination 'have rights of which they may avail themselves before the courts' (von Colson and Kamann, para. 22). The latter element in particular shows that the remedies must be linked to the victims of discrimination who, accordingly, have a right to a personal remedy.9
It is important to note that when stating the right to a personal remedy in van Colson and Kamann, the Court referred to general provisions of EC law, namely Art. 249 EC (then Art. 189 of the EEC Treaty), obliging the Member States to adopt 'all the measures necessary to ensure that the directive is fully effective, in accordance with the objective which it pursues', and to Art. 10 EC10 (then Art. 5 of the EEC Treaty), obliging the Member States to take all appropriate measures to ensure the fulfilment of their obligation to achieve the result envisaged by the Directive (von Colson and Kamann, para. 15 and 26).11 In Johnston12 (para. 18), the Court stated that the requirement of effective judicial control stipulated by Art. 6 of the Second Sex Equality Directive reflects a general principle of law which underlies the constitutional traditions common to the Member States and which is also laid down in Arts. 6 Page 9 and 13 of the European Convention on Human Rights (ECHR). Accordingly, the right to judicial process as well as the right to a personal remedy flowing from that are not dependent upon the existence of an explicit provision of law stating such rights (Prechal 2005:143:'a self-standing principle of law').
Three additional points of general importance need to be mentioned. First, where an explicit provision such as Art. 6 of the Second Sex Equality Directive exists, it has direct effect as far as the right to an effective judicial remedy is concerned, (Johnston, para. 58). Second, the Court stated in Coote13 (para. 24 subs.) that the protection afforded by the Directive also extends to the time after the termination of employment since otherwise the principle of effective judicial control would be deprived of an essential part of its effectiveness. Accordingly, the right to protection against victimisation is part of the effective enforcement of the Directive14 (Senden 1999:345, Dougan 1999:665).15 Third, the Court held in Dekker16 (para. 22 subs.) that liability on the part of the person guilty of discrimination under the Second Sex Equality Directive is 'not conditional on proof of fault or on the absence of any ground discharging such liability' since otherwise the practical effect of the principle of equal treatment would be weakened considerably. In other words, a finding of discrimination, and therefore also the right to a remedy, does not depend upon proof, brought by the victim of discrimination, of fault on the side of the employer.17
In addition to the existence of a personal and judicial remedy, EC sex equality law demands that this remedy be effective, proportionate and dissuasive. In fact, the requirement of effectiveness appeared in one of the original sex equality Directives, namely the Equal Pay or First Sex Equality Directive.18 Under Art. 6 of this Directive, the Member States shall ensure that 'effective means are available' so that the principle of equal pay is observed. However, the requirement of effectiveness is broader than this. In von Colson and Kamann (para. 18 subs.) the Court held that under Art. 6 of the Second Sex Equality Directive the Member States are required to adopt measures that are sufficiently effective to achieve the objective of the Directive. More specifically, the Member States are obliged to ensure that those measures 'may in fact be relied on' before the national courts by the persons concerned and that the remedies chosen 'guarantee real and effective judicial protection' (the requirement of effectiveness). The remedies 'must have a real and deterrent effect on the employer' (dissuasiveness). If compensation is the chosen Page 10 sanction, it 'must in any event be adequate in relation to the damage sustained' (which implies the requirement of proportionality).19
In academic writing, general definitions of the requirements of effectiveness, proportionality and dissuasiveness are offered. For example, Cohen (2004:19) explains: 'To be effective, remedies and sanctions must achieve the desired outcome; to be proportionate, they must adequately reflect the gravity, nature and extent of the loss and/or harm; and to be dissuasive, sanctions must deter future acts of discrimination.' Cohen adds that whatever the national law may provide,'sanctions will be none of these if there are not effective, simple, swift and sustained mechanisms for enforcement'. Beyond such broad definitions it is hardly possible to formulate generally applicable criteria for judging the requirements of effectiveness, proportionality and dissuasiveness. There is the question, raised by Cohen (2004:18), from whose perspective effectiveness, proportionality and dissuasiveness will be assessed. Also, the various individual criteria (of effectiveness, proportionality and dissuasiveness) may conflict with each other. Cohen points out that if, on the one hand, a Member State wants to adopt remedies that are truly dissuasive, it is useful to consider what discriminators or potential discriminators least want to lose - for example, money, reputation or business opportunities (Lappalainen 2004:28: 'the more discrimination costs, the more diversity pays'). On the other hand, a system of compensation making it possible to ensure that a company is forced out of business in the case of particularly grave infringements might be disproportionate (O'Dempsey 2004:8). In practice, much will depend on the particular circumstances of each individual case. Accordingly, the most important guideline is to judge the requirements of effectiveness, dissuasiveness and proportionality in the light of the circumstances of each individual case (see Marshall II,20 para. 25; Moore 1993:538; Moon 2004:4; more generally also Griffiths 1999:327). However, there are also certain more specific requirements under EC law, as discussed in the following section as well as in the section on damages. 21
Community law is not very specific when it comes to the form and the extent of the remedies to be applied in specific situations involving sex discrimination. Only in some rare cases does the law itself specify a certain type of sanction (e.g. Art. 4 of the Equal Pay Directive: nullity or amendment of unlawful pay provisions). As AG Léger observed, whilst it is indisputable that the principle of equal treatment of men and women constitutes a rule of Community law, it is also true that the practical rules for its implementation have not been laid down in detail (Sutton,22 point 60 of the AG's opinion). Thus, in von Colson and Kamann (para. 18), the Court emphasised that the Second Sex Equality Directive does not prescribe a specific sanction. Accordingly, the choice of remedies is for the Member States to make, provided that the remedies chosen are effective, proportionate and dissuasive. Afilalo (1998) in this context speaks of a 'controlled experimentation approach': the Court in essence lets the Member State experiment with various forms of remedies, whilst empowering the national judge to ensure that the government meets certain minimum standards.
In von Colson and Kamann (para. 18), the Court gave some concrete examples of what sufficiently effective measures might mean in a situation of discriminatory refusal of employment, namely 'provisions requiring the Page 11 employer to offer a post to the candidate discriminated against or giving the candidate adequate financial compensation, backed up where necessary by a system of fines'.This statement carries the important message that fines, be they of an administrative or of a criminal nature, are merely complementary , rather than being at the forefront of the national enforcement system. Penal sanctions may be important in the context of the requirement of dissuasiveness (Moon 2004:3 speaks about the importance of sending out a signal of the state's abhorrence of the most severe types of discrimination through criminal sanctions).
For one specific situation of discrimination the Court has actually specified the types of remedies that must be granted, by stating that one of two alternative remedies must be adopted. In Marshall II (para. 25) the Court explained that in the case of discriminatory dismissal 'a situation of equality could not be restored without either reinstating the victim of discrimination or, as an alternative, granting financial compensation for the loss and damage sustained'. In such a situation, therefore, the Member States' choice is limited in the sense that they must in any event provide for either reinstatement or financial compensation. Obviously, these can then be complemented by other remedies, such as an apology to the victim of discrimination, punitive damages or other types of sanctions (e.g. community service). In fact, certain additional remedies reinforcing the personal remedy granted to the victim of discrimination may be necessary in view of the requirement of dissuasiveness.
From a practical perspective, the fact that the Directive does not prescribe a particular type of remedy means that to that extent Art. 6 of the Second Sex Equality Directive is not unconditional and sufficiently precise for the purposes of direct effect. In other words, individuals cannot rely on it before national courts in order to claim a right to a particular remedy (von Colson and Kamann, para. 27). For that, national legislation implementing Community law is required. However, the Directive is indeed directly effective in relation to the duty to provide for remedies itself and also in relation to the effective, proportionate and dissuasive nature of the remedies chosen by the Member State. As the Court stated in Marshall II (para. 36), the fact that the Member States may choose among different solutions cannot result in an individual's being prevented from relying on Art. 6 (see Curtin 1994:643 subs.).
Finally, the above case law is codified in more recent EC sex equality legislation. Thus, the right to an effective, proportionate and dissuasive remedy23 is stated in explicit terms in Art. 8d of the Revised Second Sex Equality Directive,24 in Art. 8(2) of the Goods and Services Directive25 and in Art. 26 of the proposed Recasting Directive.26The Directives also mention compensation. The Commission's explanations of its proposals show that the relevant provisions are indeed intended to grant a personal remedy to victims of discrimination. Page 12
Turning from EC sex equality law to general EC law on remedies, a first point to be made is that several 'overarching remedies' have been developed by the Court of Justice, namely the general remedy of setting aside national measures conflicting with EC law,27 and the specific remedies of restitution,28 interim relief29 and compensation in cases of Member State liability30 (Van Gerven 2000:503 subs., with particular reference to Brealey & Hoskins 1998; also Van Gerven 2004:266, Craufurd Smith 1999:300 subs., Ward 2000:23 subs., Prechal 2005:165 subs.). Apart from these overarching remedies, the traditional starting point in EC law has been that the matter of remedies is left to the Member States, provided that they observe the principles of equivalence and effectiveness derived from Art. 10 EC (as developed by the Court of Justice since Rewe (Saarland);31 e.g. Gil Ibáñez 1999:211 subs., Tridimas 1999:279 subs. and 2000:37 subs., Malmberg et al. 2003:43 subs., Prechal 2005:137 subs.). Under these principles,'it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, first, that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and, second, that they do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness)' (Recheio-Cash & Carry,32 para. 17). The meaning of these general principles in the specific context of remedies has been expressed by Ellis (1998:144) as meaning that, in relation to Community rights,'the same remedies must be available as would be available in a similar domestic claim, provided that these do not actually frustrate the EC claim'. The Court's case law provides little concrete guidance as to the meaning of either of the two principles whose meaning in a specific case must be assessed in the context of all relevant factors of that case (e.g.Steffensen,33 para. 65 subs.). Page 13
Following Johnston, the Court also confirmed the existence of a general right to a judicial remedy outside sex equality law. In Heylens34(para. 14), a case concerning the mutual recognition of diplomas within the framework of the free movement of persons, the Court stated:'Since free access to employment is a fundamental right which the Treaty confers individually on each worker in the Community, the existence of a remedy of a judicial nature against a decision of a national authority refusing the benefit of that right is essential in order to secure for the individual effective protection for his right. As the Court held in its judgment of 15 May 1986 in [Johnston], that requirement reflects a general principle of Community law which underlies the constitutional traditions common to the Member States and has been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.'35 In the Greek Maize36 case (para. 23 subs.), which concerned the protection of the Community's financial interests in the context of agricultural levies, the Court emphasised the duties of the Member States under what is now Art. 10 EC in view of the effectiveness of Community law and the ensuing requirements in relation to remedies. Regarding the latter, the Court explained:'[W]hilst the choice of penalties remains within their [i.e. the Member States'] discretion, they must ensure in particular that infringements of Community law are penalized under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and which, in any event, make the penalty effective, proportionate and dissuasive.' (Emphasis added).37 Subsequently, these requirements were explicitly mentioned in various different areas of EU law (first pillar38 second pillar39 and third pillar law).40
As in the context of sex discrimination, the Court emphasised that, in the absence of specific legislation,41 the Member States are free to choose the type of remedies. For example, Art. 10 EC does not oblige the Member States to introduce a specific system of liability (e.g. Vandenne,42 para. 11 subs.). An important point is made in Nunes,43 Page 14 namely that where Community legislation specifies certain remedies, the list given may not be exhaustive. In such a case, the Member States are free to adopt other types of remedies in addition to those prescribed by Community law. In Nunes, this issue arose in relation to Community legislation concerning the European Social Fund,44 which only mentioned civil law remedies (namely suspension, reduction, withdrawal and/or recovery of aid used in an improper manner). In addition to such remedies, Portuguese law provided for criminal sanctions. The Court held that the measures taken by the Member States under Art. 10 EC to penalise conduct affecting the financial interests of the Community 'may include criminal penalties even where the Community legislation only provides for civil remedies. The remedy must be analogous to those applicable to infringements of national law of similar nature and importance, and the remedy must be effective, proportionate and dissuasive' (Nunes, para. 14). In practice, damages are important particularly because of the existence of the principle of EC/state liability, as already mentioned45 (though it should be noted that there is no general principle requiring compensation to be paid in all circumstances where damages result from Community law; Booker,46 para. 85). Again, some recent secondary legislation specifies certain types of remedies.47
Overall, Van Gerven (2000:521) concludes from the Court's case law that the maxim 'ubi ius ibi remedium' ('where there is a right there must be a remedy') is now a principle of Community law, which is inherent in the system of the Treaty. Under this principle, the remedy made available under national law must provide adequate judicial protection, i.e. the redress must be commensurate with the nature and the degree of interference with individuals' rights. Similarly, Prechal (2005:89 subs.) states that there now exists a general Community law requirement that remedies must be effective, proportionate, and dissuasive. As a general point, it needs to be added that the right of Member States to determine the form and extent of remedies is conditional upon the observance of the fundamental principles of Community law, which include inter alia the general principle of equality and non- discrimination (Olaso Valero,48 para. 34). Under this principle, discrimination can result from 'treating either similar situations differently or different situations identically' (Italian Refrigerators,49 p. 177 subs.). An example is provided by the Olaso Valero case, which concerned the protection of workers under Community law in the event of the insolvency of their employer.50 The Court held that where, under national law, a right to a remedy exists in the event that a dismissal is found to be unfair by a court, the same right also exists where the existence of such discrimination is stated in a conciliation procedure. Page 15
An examination of the Court's case law regarding the requirements of effectiveness, proportionality and dissuasiveness in relation to national remedies under general EC law gives the impression that the Court does not explain precisely how it arrives at the conclusion that a given remedy is or is not acceptable. For example, in Hansen51 the Court found that a national system of strict liability for infringements of EC social legislation relating to rest hours in road transport was acceptable under Community law. First, the Court held that the specific duties imposed on the employer by the relevant Regulation52 (namely to set up a service timetable and a duty roster) did not prevent Member States from setting up a system of liability on the part of the employer. Second, the Court found that a system based on strict or automatic liability (i.e. liability arising even in the event where there is no fault on the side of the employer) does not in itself involve a distortion of conditions of competition within the Community and that such as system is not disproportionate. In the latter context, the Court simply stated that road safety is a matter of public interest which may justify the imposition of a fine on the employer for infringements committed by employees and a strict system of liability. No further explanation is given. Similarly, in Italy v Commission53 the Court found that the extent of the reduction determined by the Commission of the amount paid to Italy from the European Agricultural Guidance and Guarantee Fund following a finding of insufficient controls on the part of the Italian authorities over the production of olive oil was justified. The special aspect of this case was that it concerned a provision of Community law that explicitly states the requirements of effectiveness, proportionality and dissuasiveness.54 The Court simply stated that the Commission had taken into account the positive aspects of the Italian system of controls but that there had been irregularities in the level of controls. In view of the nature of these irregularities, the correction of 2% as determined by the Commission appeared justified. Again, there are no further explanations.
The picture is similar in the different but related area of determining the amount of the fine or lump sum55 to be paid by a Member State whose failure to fulfil its obligations has been stated in a second round of enforcement proceedings. The Commission has defined its method for calculating the suggested fines and lump sums in Communications.56 In case law concerning this calculation, only a few general statements can be found. In Commission v Greece,57 a case concerning Community environmental protection law, the Court stated that in the absence of specific provisions regulating the issue in the Treaty, the Commission may adopt guidelines. It also stated that the basic criteria which must be taken into account in order to ensure that penalty payments have coercive force and Community law is applied uniformly and effectively are, in principle, the duration of the infringement, its degree of seriousness and the ability of the Member State to pay. The Court added that in Page 16 applying these criteria, particular attention should be paid to the effects of failure to comply on private and public interests and to the urgency of getting the Member State concerned to fulfil its obligations (Commission v Greece, para. 92).58 With regard to the specific case before it, the Court simply made a number of statements and then drew a conclusion. The Court found that, in the case of an ongoing breach, a penalty payment is the means best suited to the circumstances. It considered that the infringement was particularly serious because the obligation to dispose of waste without endangering human health and without harming the environment forms part of the very objectives of Community environmental policy and also because of the infringement's considerable duration. Further, the Court found that one particular breach alleged by the Commission had not been proven. From this it concluded that a penalty payment of EUR 20,000 was appropriate for each day of delay in implementing the measures necessary to comply with the Court's earlier judgment, from the day on which that later judgment was delivered to the day on which the earlier judgment was complied with. The Commission had suggested an amount of ECU 24,600. It is not clear from the judgment how precisely the Court arrived at the difference of EUR 4,600.59 Mutatis mutandis, the same approach can be observed in the later case Commission v Spain.60
Overall, these examples illustrate the point made earlier in the context of sex equality law, namely that it may be difficult if not impossible to formulate criteria that are at the same time generally applicable and specific concerning the meaning of the requirements of effectiveness, proportionality and dissuasiveness. Prechal (2005:177) observes in a more general context that in practice only a limited uniformity of EC law on enforcement is feasible. Indeed, there may be only one general guideline for the determination of the effectiveness, proportionality and dissuasiveness of national remedies for breach of EC discrimination law, namely the duty to determine the remedy in light of the concrete circumstances of each individual case. Finally, the general EC law principle of equivalence must in particular be remembered.61 In practice, this principle can mean that the remedies to be provided under national law must go beyond the minimum requirements of effectiveness, proportionality and dissuasiveness, namely where national laws provide for a stronger remedy for similar actions (e.g. for higher compensation or for more serious penal sanctions).
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[5] See I.1.3. and I.2.2. further below.
[6] Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, OJ 14.2.1976 L 39/40.
[7] Case 14/83 von Colson and Kamann v Land Nordrhein-Westfalen[1984] ECR 1891; see also Case 79/83 Dorit Harz v Deutsche Tradax GmbH [1984] ECR 1921.
[8] Again, regarding the terminology see E.I below.
[9] Criminal sanctions are not personal remedies in this sense; see E.II.2 further below.
[10] This is the provision stating the principle of cooperation in good faith between the Member States and the Community, also called the principle of solidarity or loyal cooperation.
[11] See also AG Darmon's opinion on the Johnstoncase (para. 4), where the AG made interesting links to both Art. 10 EC and to the principle of primacy.
[12] Case 222/84 Johnston v Chief Constable of the RUC[1986] ECR 1651.
[13] Case C-185/97 Coote v Granada Hospitality Ltd.[1998] ECR I-5199.
[14] Under Art. 7 of the Directive, Member States must protect employees against dismissal by the employer as a reaction to a complaint or legal proceedings in relation to sex discrimination. In Coote, the Court stated that it could not be held that the legislature's intention was to limit the protection of workers against retaliatory measures decided on by the employer solely to cases of dismissal.
[15] More recent legislation contains general provisions concerning victimisation, e.g. Art. 9 of the Race Equality Directive, Art. 11 of the Employment Equality Directive, Art. 7 of the Revised Second Sex Equality Directive. Such provisions address an important aspect of enforcement. AG Mischo describes them as ensuring 'that anyone who has dared to brave an employer's wrath by alleging discrimination [...] will not repent that boldness' (Coote, point 6 of the AG's opinion). - Dougan (1999:668) raises the question whether Cooteis really a remedies case at all, or rather a case in which the Court used Art. 6 to expand the substantive scope of the relevant Directive.
[16] Case C-177/88 Dekker v VJV-Centrum[1990] ECR I-3941.
[17] In Dutch comments on this judgment, it has been noted that the Court in effect modified the Dutch legislation on liability, and in doing so changed the national private law; e.g. Betlem (1991:1370), Prechal (1991:668). In the context of UK law, see Shaw (1991:319). - The issue of fault is also connected to the question whether administrative remedies which do not depend upon fault are lawful under Community law in view of human rights principles; see Stix-Hackl & Gardette 2004 who argue that they are indeed lawful.
[18] Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, OJ 19.2.1975 L 45/19.
[19] With regard to the requirement of proportionality, AG Rozès in her opinion on the von Colson and Kamanncase (para. 3) drew an analogy with sanctions that Member States may take in the area of the law of free movement, in particular in the context of movement and residence. Regarding the question of upper limits on compensation, see F below.
[20] Case C-271/91 Marshall v Southampton and South-West Hampshire Area Health Authority [1993] ECR I-4367, where the Court referred to the specific circumstances of the case in the context of the requirements of effectiveness and dissuasiveness.
[21] See V below.
[22] Case C-66/95 The Queen v Secretary of State for Social Security, ex parte Eunice Sutton[1997] ECR I-2163.
[23] Like the Race and Employment Framework Directives, the Revised Second Sex Equality Directive and the Recasting Directive use the term 'sanctions'. Again, the problems posed by this terminology will be discussed later; see E.I below.The Goods and Services Directive speaks of 'real and effective compensation or reparation'.
[24] Directive 2002/73/EC amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, OJ 5.10.2002 L 269/15. See also consideration 20 of the preamble to this Directive which states the need for 'adequate legal protection'.
[25] Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services, OJ 21.12.2004 L 373/37.
[26] Proposal for a Directive on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, COM(2004) 279.
[27] This is a consequence of the principle of primacy, see Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA[1978] ECR 629, para. 21.
[28] E.g. Case C-188/95 Fantask A/S and others v Industriministeriet (Erhvervsministeriet)[1997] ECR I-6783, para. 35 subs.
[29] Case C-213/89 R v Secretary of State for Transport, ex parte Factortame (Factortame I)[1990] ECR I-2433.
[30] Sutton provides an example concerning compensation in the context of discrimination (see Van Casteren 1998:489 subs., Steyger 1998,Ward 1998:72 subs., Craufurd Smith 1999:306 subs.). According to the Court, actions concerning interest on arrears of social security benefits do not come under Art. 6 of the Third Sex Equality Directive (Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security, OJ 1979 L 6/24) but rather had to be dealt with under the general EC law on Member State liability. In that latter context, the Court simply recalled its conditions under case law such as Francovich(Joined Cases C-6/90 and C-9/90 Francovich and Bonifaci v Italy[1991] ECR I-5357),Brasserie du Pêcheur (Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur v Germany[1996] ECR I-1029) and Dillenkofer(Joined Cases C-178, 179, 188, 189 and 190/94 Dillenkofer v Germany [1996] ECR I-4845) as well as the two general principles of equivalence and effectiveness (see immediately below).The Court then left the assessment of the concrete case at hand to the national court.
[31] Case 33/76 Rewe-Zentralfinanz eG et Rewe-Zentral AG v Landwirtschaftskammer fr das Saarland[1976] ECR 1989.
[32] Case C-30/02 Recheio-Cash & Carry v Fazenda Pública/Regista Nacional de Pessoas Colectivas, judgment of 17 June 2004, n.y.r.
[33] Case C-276/01 Joachim Steffensen[2003] ECR I-3735, in the context of the effectiveness of national procedural rules.
[34] Case 222/86 Union nationale des entraîneurs et cadres techniques professionnels du football (Unectef) v Georges Heylens and others[1987] ECR 4097.
[35] The Court added that effective judicial review must be able to cover the legality of the reasons for the contested decision. Consequently, there is also a duty to state reasons.
[36] Case C-68/88 Commission v Greece[1989] ECR 2965.
[37] Compare Schermers & Waelbroeck 2001, para. 204 subs.
[38] E.g. Art. 2 of Regulation 2988/95 (EC, Euratom) on the protection of the European Communities' financial interests, OJ 23.12.1995, L 312/1 (see also the Preamble to the Convention on the protection of the European Communities' financial interests, OJ 27.11.1995 C 316/48); Art. 8 of the Directive 2002/14/EC establishing a general framework for informing and consulting employees in the European Community , OJ 23.3.2002 L 80/29; Art. 14 of Regulation 793/2004/EC amending Council Regulation (EEC) No 95/93 on common rules for the allocation of slots at Community airports, OJ 30.4.2004 L 138/50; Art. 5 of Directive 98/84/EC on the legal protection of services based on, or consisting of, conditional access, OJ 28.11.1998 L 320/54; Art. 20 of the Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce'), OJ 17.7.2000 L 178/1.
[39] E.g. Art. 4.a. of Joint Action 98/742/JHA on corruption in the private sector, OJ 31.12.1998 L 358/2.
[40] E.g. Art. 5 of the Council Framework Decision 2002/475/JHA on combating terrorism, OJ 5.7.2002 L 164/3.
[41] An example of such harmonised sanctions can be found in the provisions of Regulation 2847/93/EEC establishing a control system applicable to the common fisheries policy, OJ 20.10.1993 L 261/1 (as amended), Arts. 31 subs.; see Berg 1996:67 subs.
[42] Case C-7/90 Criminal proceedings against Paul Vandevenne and others[1991] ECR I-4371.The case concerned Regulation 3820/85 on the harmonization of certain social legislation relating to road transport (OJ 31.12.1985 L 370/1) and, more specifically, rest hours for drivers. Under Art. 17, the Member States are obliged to take all necessary measures, including on penalties in case of breach.Thus, the Regulation mentions penalties but does not define them.
[43] Case C-186/98 Criminal proceedings against Maria Amélia Nunes and Evangelina de Matos [1999] ECR I-4883.
[44] Regulation 2950/83 on the tasks of the European Social Fund, OJ 22.10.1983 L 289/1.
[45] See I.2.1. above.
[46] Joined Cases C-20/00 and C-64/00 Booker Aquacultur Ltd and Hydro Seafood GSP Ltd v The Scottish Ministers[2003] ECR I-7411.
[47] For an example from the EU's third pillar (before the Amsterdam revision), see Art. 7 of the Council Framework Decision 2004/757/JHA laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, OJ 11.11.2004 L 335/8. In relation to legal persons, the following sanctions may be imposed in addition to criminal or non-criminal fines: exclusion from entitlement to tax relief or other benefits or public aid; temporary or permanent disqualification from the pursuit of commercial activities; placing under judicial supervision; a judicial winding-up order; temporary or permanent closure of the establishments used for committing the offence; the confiscation of substances which are the object of certain offences, instrumentalities used or intended to be used for these offences and proceeds from these offences or the confiscation of property the value of which corresponds to that of such proceeds, substances or instrumentalities.
[48] Case C-520/03 José Vicente Olaso Valero v Fondo de Garantía Salarial (Fogasa), judgment of 16 December 2004, n.y.r.
[49] Case 13/63 Italy v Commission[1963] ECR 165.
[50] Directive 80/987 on the approximation of the laws of the Member States relating to the protection of employees in the event of the insolvency of their employer, OJ 28.10.1980 L 283/23.
[51] Case C-326/88 Anklagemynidgheden v Hansen & Soen I/S[1990] ECR I-2911.
[52] Regulation 543/69 on the harmonisation of certain social legislation relating to road transport, OJ 29.3.1969 L 77/49.
[53] Case C-297/02 Italy v Commission, judgment of 23 September 2003, n.y.r.
[54] Art. 2(1) Regulation 2988/95 on the protection of the European Communities' financial interests, OJ 23.12.1995 L 321/1, which provides: 'Administrative checks, measures and penalties shall be introduced in so far as they are necessary to ensure the proper application of Community law.They shall be effective, proportionate and dissuasive so that they provide adequate protection for the Communities' financial interests.'
[55] In Case C-304/02 Commission v France(pending), the question is raised whether it is possible to impose simultaneously both a lump sum and penalty payment. AG Geelhoed argued that this is possible in view of the requirement of dissuasiveness (para. 73 subs. of the AG's first opinion of 29 April 2004).
[56] Information from the Commission - Memorandum on applying Article 171 of the EC Treaty, OJ 21.8.1996 C 242/6; Information from the Commission - Method of calculating the penalty payments provided for pursuant to Article 171 of the EC Treaty, OJ 28.2.1997 C 63/2.
[57] Case C-387/97 Commission v Greece[2000] ECR I-5047.
[58] A similar approach can be found in other contexts where Community law prescribes a penalty but does not define its level; e.g. Case C-225/97 Commission v France[1999] ECR I-3011, in relation to the obligation of the Member States to set a penalty payment for the infringement of Community public procurement law at a level high enough to dissuade the contracting entity from committing or persisting in an infringement.
[59] In terms of value 1 ECU corresponds to 1 Euro; see Art. 2 of Regulation 1103/97 on certain provisions relating to the introduction of the euro, OJ 19.6.1997 L 162/1.
[60] Case C-278/01 Commission v Spain, judgment of 25 November 2003, n.y.r.
[61] See I.2.1. above.
