Impact of Art. 47 CFREU on National Judicial Systems

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 Fundamental rights and national laws The relationship between art. 19 TUE and art. 47 CFR Art. 47 and its direct applicability The scope of art. 47 and the principle of effective judicial protection. The horizontal dimension and the different impact on the areas covered by the project Article 47 and collective redress Art. 47 and judicial cooperation: the link between cooperation, independence and impartiality Art. 47 and the architecture of enforcement. On the relationship between administrative and judicial enforcement The impact of art. 47 on national judges 1) substantive law (effective, proportionate and dissuasive remedies) 2) procedural law (ex officio, burden of proof, res judicata) Conclusion 2

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? 3

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. 4

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

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

Changes of procedural law and 47

47 and remedies

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 increasing relevance of sanctions and remedies in EU secondary legislation No real harmonization with different rules on sanctions and remedies at national level Partial harmonization of substantive law Very limited harmonization of procedural law The combined effect of legislative, administrative and judicial harmonization 9

Judicial rule making The role of CJEU in relation to enforcement The principle of effective judicial protection The role of art. 47 CFR and the impact on national legislations 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 procedural effects Judicial harmonization of remedial laws? The persisting degree of differentiation 10

The case law Art. 19 TUE and art. 47 CFR CJEU 216/18, Associa o Sindical dos Ju zes Portugueses, C-64/16 50 In accordance with Article 19 TEU, which gives concrete expression to the value of the rule of law affirmed in Article 2 TEU, it is for the national courts and tribunals and the Court of Justice to ensure the full application of EU law in all Member States and judicial protection of the rights of individuals under that law (see, to that effect, judgments of 27 February 2018, Associa o Sindical dos Ju zes Portugueses, 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 very existence of effective judicial review designed to ensure compliance with EU law is of the essence of the rule of law (judgment of 27 February 2018, Associa o Sindical dos Ju zes Portugueses, C-64/16, EU:C:2018:117, paragraph 36 and the case-law cited). 52 It follows that every Member State must ensure that the bodies which, as courts or tribunals within the meaning of EU law, come within its judicial system in the fields covered by EU law meet the requirements of effective judicial protection (judgment of 27 February 2018, Associa o Sindical dos Ju zes Portugueses, C-64/16, EU:C:2018:117, paragraph 37). 11

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. 12

Article 47 Within the scope of EU law article 47 is directly applicable and does not need to be combined with secondary legislation 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. It applies to contractual parties. 13

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 14

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. 15

Substantive and procedural implications of 47 Sziber 483/16 (Official English translation missing) 49 Per quanto riguarda, in secondo luogo, il principio della tutela giurisdizionale effettiva, occorre rilevare che l obbligo degli Stati membri di stabilire modalit 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 modalit procedurali relative a siffatte azioni (v., in tal senso, sentenza del 17 luglio 2014, S nchez Morcillo e Abril Garc a, C-169/14, EU:C:2014:2099, punto 35 e giurisprudenza ivi citata). 16

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. 17

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. 18

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. 19

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 audi alteram partem, as part of the rights of defence and 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). 20

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. 21

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. 22

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). 23

Article 47: individual and collective redress Applicability of article 47 CFR to collective redress (standing of qualified entities) The relationship between individual claims and collective redress and article 47 CFR (the reinterpretation of Sales Sinu s) Domestic v. cross-border collective claims (Schrems II, C-362/14) Effectiveness, proportionality and dissuasiveness and collective redress 24

Judicial and administrative enforcement The rise of administrative enforcement The relationship between administrative and judicial enforcement : alternative or complementary? What kind of complementarity? The role of art. 47 CFR in the definition of complementarity Different models of complementarity in consumer, data protection and asylum CJEU Puskar 25

Judicial cooperation, mutual trust and judicial independence Judicial cooperation and mutual trust Opinion 2/2013 CJEU 216/2018: systemic or generalized deficiencies 79 In the light of the foregoing considerations, the answer to the questions referred is that Article 1(3) of Framework Decision 2002/584 must be interpreted as meaning that, where the executing judicial authority, called upon to decide whether a person in respect of whom a European arrest warrant has been issued for the purposes of conducting a criminal prosecution is to be surrendered, has material, such as that set out in a reasoned proposal of the Commission adopted pursuant to Article 7(1) TEU, indicating that there is 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 generalised deficiencies so far as concerns the independence of the issuing Member State s judiciary, that authority must determine, specifically and precisely, whether, having regard to his personal situation, as well as to the nature of the offence for which he is being prosecuted and the factual context that form the basis of the European arrest warrant, and in the light of the information provided by the issuing Member State pursuant to Article 15(2) of the framework decision, there are substantial grounds for believing that that person will run such a risk if he is surrendered to that State. 26

Judicial cooperation and independence CJEU 216/2018, LM 53 In order for that protection to be ensured, maintaining the independence of those bodies is essential, as confirmed by the second paragraph of Article 47 of the Charter, which refers to access to an independent tribunal as one of the requirements linked to the fundamental right to an effective remedy (judgment of 27 February 2018, Associa o Sindical dos Ju zes Portugueses, C-64/16, EU:C:2018:117, paragraph 41). 54 The independence of national courts and tribunals is, in particular, essential to the proper working of the judicial cooperation system embodied by the preliminary ruling mechanism under Article 267 TFEU, in that, in accordance with the Court s settled case-law, that mechanism may be activated only by a body responsible for applying EU law which satisfies, inter alia, that criterion of independence (judgment of 27 February 2018, Associa o Sindical dos Ju zes Portugueses, C-64/16, EU:C:2018:117, paragraph 43). 58 The high level of trust between Member States on which the European arrest warrant mechanism is based is thus founded on the premiss that the criminal courts of the other Member States which, following execution of a European arrest warrant, will have to conduct the criminal procedure for the purpose of prosecution, or of enforcement of a custodial sentence or detention order, and the substantive criminal proceedings meet the requirements of effective judicial protection, which include, in particular, the independence and impartiality of those courts. 59 It must, accordingly, be held that the existence of a real risk that the person in respect of whom a European arrest warrant has been issued will, if surrendered to the issuing judicial authority, suffer a breach of his fundamental right to an independent tribunal and, therefore, of the essence of his fundamental right to a fair trial, a right guaranteed by the second paragraph of Article 47 of the Charter, is capable of permitting the executing judicial authority to refrain, by way of exception, from giving effect to that European arrest warrant, on the basis of Article 1(3) of Framework Decision 2002/584. 27

Judicial cooperation, independence and impartiality CJEU 216/2018, LM The second aspect, which is internal in nature, is linked to impartiality and seeks to ensure that an equal distance is maintained from the parties to the proceedings and their respective interests with regard to the subject matter of those proceedings. That aspect requires objectivity and the absence of any interest in the outcome of the proceedings apart from the strict application 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 Those guarantees of independence and impartiality require rules, particularly as regards the composition of the body and the appointment, length of service and grounds for abstention, rejection and dismissal of its members, in order to dispel any reasonable doubt in the minds of individuals as to the imperviousness of that body to external factors and its neutrality with respect to the interests before it. In order to consider the condition regarding the independence of the body concerned as met, the case-law requires, inter alia, that dismissals of its members should 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). 28

Judicial cooperation, independence and impartiality CJEU 216/2018, LM 67 The requirement of independence also means that the disciplinary regime governing those who have the task of adjudicating in a dispute must display the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions. Rules which define, in particular, both conduct amounting to disciplinary offences and the penalties actually applicable, which provide for the involvement of an independent body in accordance with a procedure which fully safeguards the rights enshrined in Articles 47 and 48 of the Charter, in particular the rights of the defence, and which lay down the possibility of bringing legal proceedings challenging the disciplinary bodies decisions constitute a set of guarantees that are essential for safeguarding the independence of the judiciary. 68 If, having regard to the requirements noted in paragraphs 62 to 67 of the present judgment, the executing judicial authority finds that there is, in the issuing Member State, a real risk of breach of the essence of the fundamental right to a fair trial on account of systemic or generalised deficiencies concerning the judiciary of that Member State, such as to compromise the independence of that State s courts, that authority must, as a second step, assess specifically and precisely whether, in the particular circumstances of the case, there are substantial grounds for believing that, following his surrender to the issuing Member State, the requested person will run that risk (see, by analogy, in the context of Article 4 of the Charter, judgment of 5 April 2016, Aranyosi and C ld raru, C-404/15 and C-659/15 PPU, EU:C:2016:198, paragraphs 92 and 94). 29

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 30

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? 31

Administrative and judicial cooperation The new legislative design in consumer and data protection suggests Regulation 679/2016 Regulation 2394/2017 Two models of administrative cooperation The model of judicial cooperation The problem: How should administrative and judicial enforcers cooperate given the principle of procedural autonomy? 32

The relationship between art, 47 and the principle of effectiveness The relevance for national judges 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 secondary legislation 33

Sanctions and remedies I) The principles : Effective, proportionate and dissuasive sanctions and remedies II) From judicial to legislative definitions III) Only sanctions or also administrative and civil remedies? The principles apply also to remedies IV) Integrating article 47 and the principles Effective judicial protection and proportionality Effective judicial protection and dissuasiveness 34

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. 35

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 36

Proportionality of remedies Should the rules on proportionality of sanctions apply to proportionality of remedies? Proportionality of civil remedies: single remedy Invalidity Injunctions Restitution Termination Proportionality of remedies: the choice between alternative remedies 37

Corrective remedies 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 38

Corrective remedies 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. 39

Balancing effectiveness 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 40

Balancing proportionality and dissuasiveness Le Cr dit Lyonnaise, 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. 41

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