Collective Commentary about the New Package Travel Directive

ARTICLE 24 | AFONSO RIBEIRO CAFÉ 495 All the substance of the Directive is affected by these options of full harmonisation and imperative nature. All its norms, as well as the path to be followed by national legislator in order to transpose the Directive, must be interpreted considering this choice of the European regulator. This imperative nature of the Directive is a mandatory rule of European law, non-derogable by the will of parties. “Member States should lay down rules on penalties applicable to infringements of national provisions transposing this Directive and ensure their effective implementation” 12 . The enforcement of the Directive provisions must reflect the level of harmonisation required by the Directive and its binding nature, as it is one of the most important instruments in order to impose their options. The way in which Member States implement European Union Directives onto their internal legal systems is critical as it applies a unique rigid set of rules to different social and economic conditions and does not take into consideration the different established legal systems of the Member States at the moment of setting penalties on those who do not comply with the rules of the Directive. 4. TYPES OF ENFORCEMENT The literature mentions two types of enforcement 13 : the legalistic and the conciliatory style. According to Verluis 14 , “the legalistic style forbids certain behaviour; inspectors punish the regulated when they do not comply with the legislation. The main question is whether the law has been broken or whether an infringement is visible. In this case, inspectors often use their legal powers and they apply the law strictly” . For the same author 15 , “the conciliatory approach places the emphasis on the transference of information. Here the most important aspect is to change the behaviour of the transgressor to ensure that the rules are complied with. The finding of a solution to the problems is considered important and there is an emphasis on negotiation, consultation and persuasion. Sanctions are seen as the last resort when everything else fails to work”. 12 Branca, A. (2017) “Liability for error and right of repair – consequences of a legal imperative” in Franceschelli V.; Morandi F.; Torres C. (Eds.), The New Package Travel Directive Directive , ESHTE/Inatel, (Estoril) Portugal, pp. 264-273. 13 Versluis, E., (2003) “Enforcement matters: Enforcement and compliance of European directives in four Member States”, Uitgeverij Eburon, Delft, p. 10. 14 Citing other authors, Vid. Versluis, E, Ob. cit. 15 Versluis, E, Ob. cit.