Collective Commentary about the New Package Travel Directive

Matija Damjan 1 Karmen Lutman 2 1. General remarks; 2. Effectiveness; 3. Proportionality; 4. Dissuasiveness. 1. GENERAL REMARKS The requirement for Member States to determine penalties that are effective, proportionate and dissuasive, and to provide for the mechanisms for their implementation reflects one of the aspects of the legal principle of loyalty, laid down in Article 4(3) TEU. According to this principle, Member States must, inter alia , “take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.” 3 It is settled case law that, where an EU regulation does not specifically provide any penalty for an infringement or refers for that purpose to the domestic laws, regulations and administrative provisions, as is the case in the Package Travel Directive, Article 4(3) TEU requires from Member States to take all measures necessary to guarantee the application and effectiveness of EU law 4 . Thus, Member States are required to introduce sanctions for breaches of EU law, if they are not provided for by the letter or if the EU legislation explicitly refers to national law in this regard 5 . With regard to the type and range of enforcement mechanisms used and the way in which they are applied in practice it has been stressed by the CJEU that “while the choice of penalties remains within their discretion, Member States must ensure in particular that infringements of Community law are penalised under conditions, both procedural and substantive, which are analogous to those applicable to infringements of national law of a similar nature and importance and 1 PhD, Assistant Professor at the Faculty of Law, University of Ljubljana, Department of Civil law, and Secretary General at the Institute for Comparative Law at the Faculty of Law in Ljubljana (matija.damjan@pf.uni-lj.si ). 2 PhD, Teaching and Research Assistant at the Faculty of Law, University of Ljubljana, Department of Civil law (karmen.lutman@pf.uni-lj.si ). 3 Article 4(3), second indent. 4 M. Klamert in: M. Kellerbauer, M. Klamert, J. Tomkin (eds.), The EU Treaties and the Charter of Fundamental Rights, Oxford University Press, 2019, Art. 4, p. 47, para. 31. 5 See e.g. Case 50/76 Amsterdam Bulb  1977  , para 32.