As far as I could see, there are no ECJ judgments yet dealing directly with the European Works Councils Directive. I suggest that you look at the judgments of the Court dealing with gender discrimination in the workplace. There are a number of decisions that deal with the question of effective, dissuasive and proportionate sanctions. In von Colson and Kamann, the employer had offered only the out of pocket expenses for the job application - a bus ticket and a stamp and an envelope for sending the application - after clear gender based rejection of two applicants. Subsequently, a discussion ensued between German courts and the ECJ about appropriate sanctions. German courts held in a series of decisions that one monthly salary would be enough, while the ECJ was more inclined to side with the female applicants and award an amount equal to the salary over the entire probabation period, typically 3 months and sometimes as much as 6 months or a year.

Obviously, the impact of a violation of the EWC Directive would have to be assessed differently but maybe the ECJ judgments from that earlier discussion can provide some guidance.

Dear Frank, thank you very much for your reply and the hints. Indeed, I have already come across and brushed over the von Colson and Kamann cases and argued along the same lines as you recommend, namely that in absence of specific jurisprudence on EWCs the ECJ's line of argumentation from other areas are/couldl be applicable per analogiam. After all, the predominant feature we are talking about is the instrument (the directive, in this case) and its effectiveness and enforcement, rather than the specific matter the instrument regulates.

In any case I will keep on digging :)

Best regards, Romuald

Hi,

You may find this useful:

'Remedies and Sanctions in EC non-discrimination law “Effective, proportionate and dissuasive national sanctions and remedies, with particular reference to upper limits on compensation to victims of discrimination” - Prof. Christa Tobler European Network of Legal Experts in the non-discrimination field

von Colson and Kamann is referred to for guidance. 'Dissuasive' is interpreted as  in 'deterrent' . So the sanctions imposed have to be practical to be effective and balanced between being 'sufficiently preventive and proportional to the wrong'. To  my mind the 'effective and dissuasive' go together to be balanced against the need for proportionality.

regards,

Dear Gita,

many thanks for your valuable reply and especially the hint on prof. Tobler's publication, which seems very relevant. From theh quick glance I can see she starts her report by a chapter providing general doctrine considerations, which gives me an opportunity to anchor my area of research to. I will keep on digging, but that shall bring me forward.

How could I forget, there is of course the excellent book by Takis Tridimas: General Principles of EU Law, Oxford UP, 3rd ed forthcoming. The second edition had two large chapters on proportionality and a major chapter - some 60 pages - on the principle of effectiveness. The 3rd ed will be larger and fully updated. This will be the gold standard as far as general discussion of the general principles is concerned!

Dear Frank, I am on it! Sounds like a real golden trace worth pursuing. Many thanks again, it complements well what I have gathered so far.

You may also find it useful to consult the following two books on the implementation of EU directives, both of which discuss criminal sanctions and the requirements of effectiveness, equivalence and proportionality that flow from the CJEU caselaw.

Sacha Prechal, Directives in EC Law (OUP, 2005), pp 90-91.  

Richard Brent, Directives: Rights and Remedies in English and Community Law (LLP/Informa Law, 2001), pp. 115-119.

Dear Anthony, many thanks for these two tips. I will definitely follow these leads.