Collective Commentary about the New Package Travel Directive

ARTICLE 25 | ALESSANDRA CORRADO AND SARA D’URSO 523 proportionality the Court has consistently held that, in order to establish whether a provision of EU law complies with the principle of proportionality, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it 8 . The inhomogeneity of the quantitative limits to the sanctions has, in fact, led to unfair treatment for equal violations in the different Member States 9 . In the regulation concerning packages, the issue is even more stringent, given the principle of strong harmonization stated in the Directive, which does not allow single States a particular autonomy in the implementation process, in order to prevent or reduce disparities between different enforcement regimes within the European Union. On the issue of penalties European Union already moved towards a proposal for a Directive amending Council Directive 93/13/ECC of 5 April 1993, Directive 98/6/EC of European Parliament and of the Council, Directive 2005/29/EC and Directive 2011/83/EU as regards better enforcement and modernisation of EU consumer protection rules 10 . In the matter of penalties, the proposal harmonises the minimum level of penalties by requiring Member States to introduce fines based on a trader’s turnover only for widespread infringements and widespread infringements of a Union dimension where such harmonisation is clearly necessary to ensure the coordination of penalties required by the revised CPC Regulation. For all other infringements, the proposal 8 Faure, Effective, Proportional and Dissuasive Penalties in the Implementation of the Environmental Crime and Shipsource Pollution Directives: Questions and Challenges, in European Energy and Environmental Law Review 19(6):256-278, 2010. The Author also synthetises the definitions of the three criteria: Effectiveness, penalties are capable to ensure compliance with EU law; proportionality: penalties adequately reflect the gravity of the violation and do not go beyond what is necessary to achieve the desired objective; dissuasiveness: the penalties have a deterrent effect on the offender which should be prevented from repeating the offence and on the other potential offenders to commit the same offence. 9 The Fitness Check of EU Consumer Law, BEUC-X-2017-040 – 25/04/2017, at page 2: A good example of the lack of effectiveness of the Directive is the Volkswagen emissions scandal, where consumers from many countries are unable to bring a civil claim based on a breach of unfair practice legislation. Consumers don’t benefit from consumer protection law even though the practice is black-listed, hence, in all circumstances, unfair. While consumers are well protected in some Member States, in others, consumers have no rights at all in case of an infringement of the EU rules. Particularly in the case of EU-wide infringements, this leads to different classes of consumer protection, and this under a fully harmonising Directive whose aim is to create a high common level of consumer protection. We urge the Commission to remedy this shortcoming and propose an EU wide standard for individual rights and remedies of consumers, without lowering the level of protection that already exists in the Member States. On top of that, non-compliant traders should face truly dissuasive sanctions amounting to a significant percentage of their yearly turnover. 10 Brussels, 11.4.2018, COM(2018) 185 final 2018/0090 (COD).