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Vienna , 11/12 april 2019 Prof. Fabrizio Cafaggi Italian Council of State

Vienna , 11/12 april 2019 Prof. Fabrizio Cafaggi Italian Council of State. The ‘national life’ of the EU Charter of fundamental rights CJEU jurisprudence impact on judicial dialogue and remedial national laws. Summary. Content and objectives of the Project

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Vienna , 11/12 april 2019 Prof. Fabrizio Cafaggi Italian Council of State

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  1. Vienna, 11/12 april 2019Prof. FabrizioCafaggiItalian Council of State The ‘national life’ of the EU Charter of fundamental rights CJEU jurisprudence impact on judicial dialogue and remedial national laws

  2. Summary • Content and objectives of the Project • Fundamentalrights and nationallaws • The relationshipbetween art. 19 TUE and art. 47 CFR • Art. 47 and itsdirectapplicability • The scope of art. 47 and the principle of effectivejudicialprotection. The horizontaldimension and the different impact on the areascovered by the project • Article 47 and collectiveredress • Art. 47 and judicialcooperation: the link betweencooperation, independence and impartiality • Art. 47 and the architecture of enforcement. On the relationshipbetweenadministrative and judicialenforcement • The impact of art. 47 on nationaljudges • 1) substantive law (effective, proportionate and dissuasive remedies) • 2) procedural law (ex officio, burden of proof, res judicata) • Conclusion

  3. FRICORE project- The main questions addressed - • How does the Charter impact on procedural autonomy? Powers and responsibility of national judges. • The rise of administrative enforcement and its interaction with civil and criminal adjudication. Does art. 47 influence the choice among enforcement mechanisms and/or their combination? • Does art. 47 broaden the judicial power to define remedies and sanctions? Does it contribute to • broaden/limit the scope of existing remedies and sanctions • create new remedies or sanctions • Does art. 47, CFREU, have an impact on the allocation of such power between the judge and the parties? • Does it modify (by means of consistent interpretation, disapplication or legislative reform) procedural rules, including rules on prescription periods, on allocation of the burden of proof, on ADR?

  4. Re-Jus Project- The context (ii) - • The gradual erosion of the principle of procedural autonomy through application of general principles • The role for the principles of equivalence and effectiveness • Article 47, CFREU: • Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. • Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. • Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

  5. Art. 47 • I) Has art. 47 been referred to by Judges in your legal system mainly to interpret national legislation or to evaluate the validity of legislation? Can you give examples of change of judicial interpretation driven by art. 47 ? Can you give examples of legislation set aside for conflict with art. 47? • II) Has art. 47 application in your legal system contributed to change the interpretation of remedial law? • III) Has art. 47 application contributed to • the creation of new remedies: • the expansion of the scope of existing remedies • the choice and definition of the amount of administrative sanctions

  6. Art. 47 • IV) Has art. 47 application in your legal system contributed to the change of the interpretation of procedural law with particular reference to • a) right to defence: • b) right to be heard • c) equal arms • d) ex officio powers • V) Has art. 47 been applied to define the scope of judicial review?: • VI) What is the relationship between article 47 and the right to good administration in relation to • fair proceeding and fair trial? • VI a) and to the right to an effective administrative remedy

  7. Changes of procedural law and 47

  8. 47 and remedies

  9. EU legislative harmonization • Article 19 TEU : Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law. • The increasingrelevance of sanctions and remedies in EU secondarylegislation • No realharmonization with differentrules on sanctions and remediesatnationallevel • Partialharmonization of substantive law • Verylimitedharmonization of procedural law • The combinedeffect of legislative, administrative and judicialharmonization

  10. Judicialrulemaking • The role of CJEU in relation to enforcement • The principle of effectivejudicialprotection • The role of art. 47 CFR and the impact on nationallegislations • Art 47 CFR: “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” • The substantive and the proceduraleffects • Judicialharmonization of remediallaws? The persistingdegree of differentiation

  11. The case law Art. 19 TUE and art. 47 CFR • CJEU 216/18, AssociaçãoSindicaldosJuízesPortugueses, C‑64/16 • “50      In accordance with Article 19 TEU, whichgives concrete expression to the value of the rule of law affirmed in Article 2 TEU, itis for the nationalcourts and tribunals and the Court of Justice to ensure the full application of EU law in allMemberStates and judicialprotection of the rights of individuals under that law (see, to thateffect, judgments of 27 February 2018, AssociaçãoSindicaldosJuízesPortugueses, C‑64/16, EU:C:2018:117, paragraph 32 and the case-law cited, and of 6 March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph 36 and the case-law cited). • 51      The veryexistence of effectivejudicialreviewdesigned to ensurecompliance with EU law is of the essence of the rule of law (judgment of 27 February 2018, AssociaçãoSindicaldosJuízesPortugueses, C‑64/16, EU:C:2018:117, paragraph 36 and the case-law cited). • 52     ItfollowsthateveryMember State must ensurethat the bodieswhich, as ‘courts or tribunals’ within the meaning of EU law, come withinitsjudicial system in the fieldscovered by EU law meet the requirements of effectivejudicialprotection (judgment of 27 February 2018, AssociaçãoSindicaldosJuízesPortugueses, C‑64/16, EU:C:2018:117, paragraph 37).

  12. The case law Art. 19 TUE and art. 47 CFR CJEU, C‑682/15, Berlioz Investment Fund • According to Article 47 of the Charter, entitled ‘Right to an effective remedy and to a fair trial’, everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal. The obligation imposed on the Member States in the second subparagraph of Article 19(1) TEU, to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law, corresponds to that right.

  13. Article 47 • Within the scope of EU law article 47 isdirectlyapplicable and doesnotneed to be combined with secondarylegislation • CJEU 414/2016 Egemberger: “Secondly, it must be pointed out that, like Article 21 of the Charter, Article 47 of the Charter on the right to effective judicial protection is sufficient in itself and does not need to be made more specific by provisions of EU or national law to confer on individuals a right which they may rely on as such.” • Itapplies to contractual parties.

  14. Article 47 and the principle of effectiveness “the principle of effective judicial protection is a general principle of EU law, which is now set out in Article 47 of the Charter. Article 47 secures in EU law the protection afforded by Article 6(1) and Article 13 of the ECHR. It is necessary, therefore, to refer only to Article 47 (see, to that effect, judgment of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraphs 46 and 47).” Berlioz Investment Fund, C‑682/15

  15. Article 47 and the principle of effectiveness • CJEU 180/17 X and Y v. Staat • As regards the principle of effectiveness, it must be found that this does not, in the present case, entail requirements going beyond those deriving from fundamental rights — in particular from the right to an effective remedy — guaranteed by the Charter. Since, as is apparent from paragraph 30 of the present judgment, Article 47 of the Charter, read in the light of the guarantees contained in Articles 18 and 19(2) thereof, requires only that an applicant for international protection whose application has been refused, and in regard to whom a return decision has been adopted, should be able to enforce his rights effectively before a judicial authority, the mere fact that an additional level of jurisdiction, provided for by national law, does not have automatic suspensory effect does not justify a finding that the principle of effectiveness has been disregarded.

  16. Substantive and proceduralimplications of 47 • Sziber 483/16 (Official English translationmissing) • «49 Per quanto riguarda, in secondo luogo, il principio della tutela giurisdizionale effettiva, occorre rilevare che l’obbligo degli Stati membri di stabilire modalità procedurali che consentono di garantire il rispetto dei diritti che i soggetti dell’ordinamento traggono dalla direttiva 93/13 contro l’uso di clausole abusive implica un requisito di tutela giurisdizionale effettiva, sancita parimenti dall’articolo 47 della Carta. Siffatta tutela deve valere sia sul piano della designazione dei giudici competenti a conoscere delle azioni fondate sul diritto dell’Unione, sia per quanto riguarda la definizione delle modalità procedurali relative a siffatte azioni (v., in tal senso, sentenza del 17 luglio 2014, SánchezMorcillo e Abril García, C‑169/14, EU:C:2014:2099, punto 35 e giurisprudenza ivi citata).»

  17. Art. 47 and the right to be heard • Sacko Moussa, case C-348/16 The CJEU held that the “failure to give the applicant the opportunity to be heard in an appeal procedure constitutes a restriction of the rights of the defence, which form part of the principle of effective judicial protection enshrined in Article 47 of the Charter” (para. 37). The Court acknowledged nevertheless that the right to a fair and public hearing is not absolute, and restrictions can be established according to the wording of Article 52 CFR.

  18. Art. 47 and evidence • CJEU Alheto 585/16 • «110    In that context, the words ‘shall ensure that an effective remedy provides for a full and ex nunc examination of both facts and points of law’ must, in order not to deprive them of their ordinary meaning, be interpreted as meaning that the Member States are required, by virtue of Article 46(3) of Directive 2013/32, to order their national law in such a way that the processing of the appeals referred to includes an examination, by the court or tribunal, of all the facts and points of law necessary in order to make an up-to-date assessment of the case at hand. • 111    In that regard, the expression ‘ex nunc’ points to the court or tribunal’s obligation to make an assessment that takes into account, should the need arise, new evidence which has come to light after the adoption of the decision under appeal. • 112    Such an assessment makes it possible to deal with the application for international protection exhaustively without there being any need to refer the case back to the determining authority. Thus, the court’s power to take into consideration new evidence on which that authority has not taken a decision is consistent with the purpose of Directive 2013/32, as referred to in paragraph 109 of this judgment.

  19. Art. 47 and evidence • CJEU Alheto 585/2016 • «113    For its part, the adjective ‘full’ used in Article 46(3) of Directive 2013/32 confirms that the court or tribunal is required to examine both the evidence which the determining authority took into account or could have taken into account and that which has arisen following the adoption of the decision by that authority. • 114    Furthermore, since that provision must be interpreted in a manner consistent with Article 47 of the Charter, the requirement for a full and ex nunc examination implies that the court or tribunal seised of the appeal must interview the applicant, unless it considers that it is in a position to carry out the examination solely on the basis of the information in the case file, including, where applicable, the report or transcript of the personal interview before that authority (see, to that effect, judgment of 26 July 2017, Sacko, C‑348/16, EU:C:2017:591, paragraphs 31 and 44). In the event that new evidence comes to light after the adoption of the decision under appeal, the court or tribunal is required, as follows from Article 47 of the Charter, to offer the applicant the opportunity to express his views when that evidence could affect him negatively.”

  20. Art. 47 and ex officio power • Banif Plus case, C-472/11, para. 29 (…) in implementing European Union law, the national court must also respect the requirements of effective judicial protection of the rights that individuals derive from European Union law, as guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union. Among those requirements is the principle of audialterampartem, as part of the rights of defenceand which is binding on that court, in particular when it decides a dispute on a ground that it has identified of its own motion (see, to that effect, Case C 89/08 P, Commission v Ireland and Others [2009] ECR I 11245, paragraphs 50 and 54).

  21. Art. 47, ex officio powers and burden of proof • Online Games case, C-685/15 Articles 49 and 56 TFEU, as interpreted in particular in the judgment of 30 April 2014, Pfleger and Others (C‑390/12, EU:C:2014:281), read in light of Article 47 of the Charter, must be interpreted as not precluding a national procedural system according to which, in administrative offence proceedings, the court called upon to rule on the compliance with EU law of legislation restricting the exercise of a fundamental freedom of the European Union, such as the freedom of establishment or the freedom to provide services within the Union, is required to examine of its own motion the facts of the case before it in the context of examining whether administrative offences arise, provided that such a system does not have the consequence that that court is required to substitute itself for the competent authorities of the Member State concerned, whose task it is to provide the evidence necessary to enable that court to determine whether that restriction is justified.

  22. Article 47 and the burden of proof • Faber • Sporting Odds case (C-3/17), Art. 56 TFEU and Article 4(3) TEU, read in conjunction with Articles 47 and 48 CFR, admit national legislations not providing for the ex officio examination of the proportionality of measures restricting the freedom to provide services and which puts the burden of proof on the parties to the proceedings.

  23. Effectiveness and res judicata Banco Primus, C-421/14 • Directive 93/13 must be interpreted as not precluding a rule of national law, such as that resulting from Article 207 of the LEC, which prohibits national courts from examining of their own motion the unfairness of contractual terms where a ruling has already been given on the lawfulness of the terms of the contract, taken as a whole, with regard to that directive in a decision which has become res judicata. • By contrast, where there are one or more contractual terms the potential unfair nature of which has not been examined during an earlier judicial review of the contract in dispute which has been closed by a decision which has become res judicata, Directive 93/13 must be interpreted as meaning that a national court, before which a consumer has properly lodged an objection, is required to assess the potential unfairness of those terms, whether at the request of the parties or of its own motion where it is in possession of the legal and factual elements necessary for that purpose. • Para. 52: (...) In the absence of such a review, consumer protection would be incomplete and insufficient and would not constitute either an adequate or effective means of preventing the continued use of that term, contrary to Article 7(1) of Directive 93/13 (see, to that effect, judgment of 14 March 2013, Aziz, C 415/11, EU:C:2013:164, paragraph 60).

  24. Article 47: individual and collectiveredress • Applicability of article 47 CFR to collectiveredress (standing of qualifiedentities) • The relationshipbetweenindividualclaims and collectiveredress and article 47 CFR (the reinterpretation of Sales Sinuès) • Domestic v. cross-bordercollectiveclaims (Schrems II, C-362/14) • Effectiveness, proportionality and dissuasiveness and collectiveredress

  25. Judicial and administrative enforcement • The rise of administrative enforcement • The relationshipbetweenadministrative and judicial enforcement : alternative or complementary? • Whatkind of complementarity? • The role of art. 47 CFR in the definition of complementarity • Differentmodels of complementarity in consumer, data protection and asylum • CJEU Puskar

  26. Judicialcooperation, mutual trust and judicialindependence • Judicialcooperation and mutual trust • Opinion 2/2013 • CJEU 216/2018: systemic or generalizeddeficiencies • 79      In the light of the foregoingconsiderations, the answer to the questionsreferredisthatArticle 1(3) of Framework Decision 2002/584 must be interpretedasmeaningthat, where the executingjudicial authority, calledupon to decide whether a person in respect of whom a Europeanarrest warrant hasbeenissued for the purposes of conducting a criminalprosecutionis to be surrendered, hasmaterial, suchasthat set out in a reasonedproposal of the Commissionadoptedpursuant to Article 7(1) TEU, indicatingthatthereis a real risk of breach of the fundamental right to a fair trial guaranteed by the second paragraph of Article 47 of the Charter, on account of systemic or generaliseddeficiencies so far asconcerns the independence of the issuingMemberState’sjudiciary, that authority must determine, specifically and precisely, whether, havingregard to his personal situation, aswellas to the nature of the offence for which he isbeingprosecuted and the factualcontextthatform the basis of the Europeanarrest warrant, and in the light of the information provided by the issuingMember State pursuant to Article 15(2) of the framework decision, there are substantialgrounds for believingthatthatpersonwillrunsuch a risk if he issurrendered to that State.

  27. Judicialcooperation and independence • CJEU 216/2018, LM • «53      In order for thatprotection to be ensured, maintaining the independence of thosebodiesisessential, asconfirmed by the second paragraph of Article 47 of the Charter, whichrefers to access to an ‘independent’ tribunalas one of the requirementslinked to the fundamental right to an effectiveremedy (judgment of 27 February 2018, AssociaçãoSindicaldosJuízesPortugueses, C‑64/16, EU:C:2018:117, paragraph 41). • 54      The independence of nationalcourts and tribunalsis, in particular, essential to the properworking of the judicialcooperation system embodied by the preliminaryrulingmechanism under Article 267 TFEU, in that, in accordance with the Court’ssettled case-law, thatmechanismmay be activatedonly by a body responsible for applying EU law whichsatisfies, inter alia, thatcriterion of independence (judgment of 27 February 2018, AssociaçãoSindicaldosJuízesPortugueses, C‑64/16, EU:C:2018:117, paragraph 43). • 58      The high level of trust betweenMemberStates on which the Europeanarrest warrant mechanismisbasedisthusfounded on the premissthat the criminalcourts of the otherMemberStates — which, followingexecution of a Europeanarrest warrant, willhave to conduct the criminal procedure for the purpose of prosecution, or of enforcement of a custodialsentence or detentionorder, and the substantivecriminalproceedings — meet the requirements of effectivejudicialprotection, which include, in particular, the independence and impartiality of thosecourts. • 59      It must, accordingly, be heldthat the existence of a real risk that the person in respect of whom a Europeanarrest warrant hasbeenissuedwill, ifsurrendered to the issuingjudicial authority, suffer a breach of hisfundamental right to an independenttribunal and, therefore, of the essence of hisfundamental right to a fair trial, a right guaranteed by the second paragraph of Article 47 of the Charter, iscapable of permitting the executingjudicial authority to refrain, by way of exception, from givingeffect to thatEuropeanarrest warrant, on the basis of Article 1(3) of Framework Decision 2002/584.

  28. Judicialcooperation, independence and impartiality • CJEU 216/2018, LM • The second aspect, whichisinternal in nature, islinked to impartiality and seeks to ensurethat an equaldistanceismaintained from the parties to the proceedings and theirrespectiveinterests with regard to the subjectmatter of thoseproceedings. Thataspectrequiresobjectivity and the absence of anyinterest in the outcome of the proceedingsapart from the strictapplication of the rule of law (judgment of 19 September 2006, Wilson, C‑506/04, EU:C:2006:587, paragraph 52 and the case-law cited). • 66      Thoseguarantees of independence and impartialityrequirerules, particularlyasregards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of itsmembers, in order to dispelanyreasonabledoubt in the minds of individualsas to the imperviousness of that body to externalfactors and itsneutrality with respect to the interestsbeforeit. In order to consider the conditionregarding the independence of the body concernedasmet, the case-law requires, inter alia, thatdismissals of itsmembersshould be determined by express legislative provisions (judgment of 9 October 2014, TDC, C‑222/13, EU:C:2014:2265, paragraph 32 and the case-law cited).

  29. Judicialcooperation, independence and impartiality • CJEU 216/2018, LM • 67      The requirement of independencealsomeansthat the disciplinary regime governingthosewhohave the task of adjudicating in a dispute must display the necessaryguarantees in order to preventany risk of itsbeingusedas a system of political control of the content of judicialdecisions. Ruleswhichdefine, in particular, bothconductamounting to disciplinaryoffences and the penaltiesactuallyapplicable, whichprovide for the involvement of an independent body in accordance with a procedure whichfullysafeguards the rightsenshrined in Articles 47 and 48 of the Charter, in particular the rights of the defence, and whichlay down the possibility of bringinglegalproceedingschallenging the disciplinarybodies’ decisionsconstitute a set of guaranteesthat are essential for safeguarding the independence of the judiciary. • 68      If, havingregard to the requirementsnoted in paragraphs 62 to 67 of the presentjudgment, the executingjudicial authority findsthatthereis, in the issuingMember State, a real risk of breach of the essence of the fundamental right to a fair trial on account of systemic or generaliseddeficienciesconcerning the judiciary of thatMember State, suchas to compromise the independence of thatState’scourts, that authority must, as a second step, assessspecifically and preciselywhether, in the particularcircumstances of the case, there are substantialgrounds for believingthat, followinghissurrender to the issuingMember State, the requestedpersonwillrunthat risk (see, by analogy, in the context of Article 4 of the Charter, judgment of 5 April 2016, Aranyosi and Căldăraru, C‑404/15 and C‑659/15 PPU, EU:C:2016:198, paragraphs 92 and 94).

  30. Re-Jus Project- The conceptual framework: (i) judicial dialogue - • The geometry of judicial dialogue: vertical and horizontal • The pathway of vertical judicial dialogue: conforming interpretation, disapplication, preliminary references • Preliminary reference • 1) framing the reference • 2) providing an answer: • I. defining detailed rules • II. offering general guidance: setting the principles • III. deferring to national courts • 3) the application of the ruling • I. by the referring court • II. by other MS’ courts

  31. Re-Jus Project- The conceptual framework: (ii) the impact of judicial dialogue - • Possible outcomes of judicial dialogue: • Setting legislation aside /changing legislation • Changing judicial interpretation of current legislation implementing EU law • Evaluating and measuring the impact of EU judgments across MSs • Adhesion, adaptation, resistance, failure to consider • The challenges: how uniformly binding judgments may have different impact on the MSs?

  32. Administrative and judicialcooperation • The new legislative design in consumer and data protectionsuggests • Regulation 679/2016 • Regulation 2394/2017 • Twomodels of administrativecooperation • The model of judicialcooperation • The problem: How shouldadministrative and judicialenforcers cooperate given the principle of proceduralautonomy?

  33. The relationshipbetween art, 47 and the principle of effectiveness • The relevance for nationaljudges • The case law of CJEU: continuity? • Scope of application of art. 47 and the Charter • Scope of application of EU principles • Effects of the application of art. 47 to the Treaties and to secondarylegislation

  34. Sanctions and remedies • I) The principles : Effective, proportionate and dissuasive sanctions and remedies • II) From judicial to legislative definitions • III) Onlysanctions or alsoadministrative and civilremedies? The principlesapplyalso to remedies • IV) Integratingarticle 47 and the principles • Effectivejudicialprotection and proportionality • Effectivejudicialprotection and dissuasiveness

  35. Proportionality of sanctions in data protection • Art. 83 Reg. 269/2016: 1.Each supervisory authority shall ensure that the imposition of administrative fines pursuant to this Article in respect of infringements of this Regulation referred to in paragraphs 4, 5 and 6 shall in each individual case be effective, proportionate and dissuasive. 2.Administrative fines shall, depending on the circumstances of each individual case, be imposed in addition to, or instead of, measures referred to in points (a) to (h) and (j) of Article 58(2). When deciding whether to impose an administrative fine and deciding on the amount of the administrative fine in each individual case due regard shall be given to the following: (a) the nature, gravity and duration of the infringement taking into account the nature scope or purpose of the processing concerned as well as the number of data subjects affected and the level of damage suffered by them; (b) the intentional or negligent character of the infringement; (c) any action taken by the controller or processor to mitigate the damage suffered by data subjects; (d) the degree of responsibility of the controller or processor taking into account technical and organisational measures implemented by them pursuant to Articles 25 and 32; (e) any relevant previous infringements by the controller or processor; (f) the degree of cooperation with the supervisory authority, in order to remedy the infringement and mitigate the possible adverse effects of the infringement; (g) the categories of personal data affected by the infringement; (h) the manner in which the infringement became known to the supervisory authority, in particular whether, and if so to what extent, the controller or processor notified the infringement; (i) where measures referred to in Article 58(2) have previously been ordered against the controller or processor concerned with regard to the same subject-matter, compliance with those measures; (j) adherence to approved codes of conduct pursuant to Article 40 or approved certification mechanisms pursuant to Article 42; and (k) any other aggravating or mitigating factor applicable to the circumstances of the case, such as financial benefits gained, or losses avoided, directly or indirectly, from the infringement.

  36. Proportionality of sanctions in consumer protection • Art. 10 Reg. 2394/2017 • 4. Competent authorities shall have at least the following enforcement powers: (…) • (h) the power to impose penalties, such as fines or periodic penalty payments, for infringements covered by this Regulation and for the failure to comply with any decision, order, interim measure, trader’s commitment or other measure adopted pursuant to this Regulation. • The penalties referred to in point (h) shall be effective, proportionate and dissuasive, in accordance with the requirements of Union laws that protect consumers’ interests. In particular, due regard shall be given, as appropriate, to the nature, gravity and duration of the infringement in question

  37. Proportionality of remedies • Should the rules on proportionality of sanctionsapply to proportionality of remedies? • Proportionality of civilremedies: single remedy • Invalidity • Injunctions • Restitution • Termination • Proportionality of remedies: the choicebetween alternative remedies

  38. Correctiveremedies in consumer protection • Art. 10 Reg. 2394/2017 • 4. Competent authorities shall have at least the following enforcement powers: • (a) the power to adopt interim measures to avoid the risk of serious harm to the collective interests of consumers; • (b) the power to seek to obtain or to accept commitments from the trader responsible for the infringement covered by this Regulation to cease that infringement; • (c) the power to receive from the trader, on the trader’s initiative, additional remedial commitments for the benefit of consumers that have been affected by the alleged infringement covered by this Regulation, or, where appropriate, to seek to obtain commitments from the trader to offer adequate remedies to the consumers that have been affected by that infringement; • (d) where applicable, the power to inform, by appropriate means, consumers that claim that they have suffered harm as a consequence of an infringement covered by this Regulation about how to seek compensation under national law; • (e) the power to order in writing the cessation of infringements covered by this Regulation by the trader; • (f) the power to bring about the cessation or the prohibition of infringements covered by this Regulation; • (g) where no other effective means are available to bring about the cessation or the prohibition of the infringement covered by this Regulation and in order to avoid the risk of serious harm to the collective interests of consumers: • (i) the power to remove content or to restrict access to an online interface or to order the explicit display of a warning to consumers when they access an online interface; • (ii) the power to order a hosting service provider to remove, disable or restrict access to an online interface; or • (iii) where appropriate, the power to order domain registries or registrars to delete a fully qualified domain name and to allow the competent authority concerned to register it; • including by requesting a third party or other public authority to implement such measures; • (h) the power to impose penalties, such as fines or periodic penalty payments, for infringements covered by this Regulation and for the failure to comply with any decision, order, interim measure, trader’s commitment or other measure adopted pursuant to this Regulation. • The penalties referred to in point (h) shall be effective, proportionate and dissuasive, in accordance with the requirements of Union laws that protect consumers’ interests. In particular, due regard shall be given, as appropriate, to the nature, gravity and duration of the infringement in question

  39. Correctiveremedies in data protection • Article 58(2), GDPR • 2.Each supervisory authority shall have all of the following corrective powers: (a) to issue warnings to a controller or processor that intended processing operations are likely to infringe provisions of this Regulation; (b) to issue reprimands to a controller or a processor where processing operations have infringed provisions of this Regulation; (c) to order the controller or the processor to comply with the data subject's requests to exercise his or her rights pursuant to this Regulation; • (d) to order the controller or processor to bring processing operations into compliance with the provisions of this Regulation, where appropriate, in a specified manner and within a specified period; (e) to order the controller to communicate a personal data breach to the data subject; (f) to impose a temporary or definitive limitation including a ban on processing; (g) to order the rectification or erasure of personal data or restriction of processing pursuant to Articles 16, 17 and 18 and the notification of such actions to recipients to whom the personal data have been disclosed pursuant to Article 17(2) and Article 19; (h) to withdraw a certification or to order the certification body to withdraw a certification issued pursuant to Articles 42 and 43, or to order the certification body not to issue certification if the requirements for the certification are not or are no longer met; (i) to impose an administrative fine pursuant to Article 83, in addition to, or instead of measures referred to in this paragraph, depending on the circumstances of each individual case; (j) to order the suspension of data flows to a recipient in a third country or to an international organisation.

  40. Balancingeffectiveness and proportionality In the light of the principle of effectiveness and proportionality Where information requirements are not included in a consumer credit contract: “the agreement is deemed to be interest-free and free of charges, provided that the information covers matters which, if not included, may compromise the ability of the consumer to assess the extent of his liability” (Home Credit, C- 42/15) Weber and Putz, C-65/09 and 87/09 It must be observed in that regard that, concerning in particular the specific situation referred to by the referring court, in which replacement of the defective goods, as the only possible remedy, involves disproportionate costs because of the need to remove the goods not in conformity from where they were installed and to install the replacement goods, Article 3(3) of the Directive does not preclude the consumer’s right to reimbursement of the cost of removing the defective goods and installing the replacement goods from being limited, where necessary, to an amount proportionate to the value the goods would have if there were no lack of conformity and the significance of the lack of conformity. Such limitation leaves intact the consumer’s right to seek replacement of goods not in conformity. In that context, it must be pointed out that Article 3 aims to establish a fair balance between the interests of the consumer and the seller, by guaranteeing the consumer, as the weak party to the contract, complete and effective protection from faulty performance by the seller of his contractual obligations, while enabling account to be taken of economic considerations advanced by the seller.

  41. Balancingproportionality and dissuasiveness Le CréditLyonnaise, C 565/12 • the Court has held that the severity of penalties must be commensurate with the seriousness of the infringements for which they are imposed, in particular by ensuring a genuinely dissuasive effect, while respecting the general principle of proportionality (Texdata Software, paragraph 51). (...) • If, after carrying out the abovementioned comparison, the referring court were to conclude that, in the dispute before it, the application of the penalty of forfeiture of entitlement to contractual interest is liable to confer an advantage on the creditor, since the amounts which it forfeits are less than those resulting from the application of interest at the increased statutory rate, it would follow that, clearly, the system of penalties at issue in the main proceedings does not ensure that the penalty incurred is genuinely dissuasive.

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