Collective Commentary about the New Package Travel Directive

530 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE 2. EFFECTIVENESS The penalty is considered to be effective if it enables to reach the goals set by the legislator 23 . Accordingly, the notion of effectiveness should be evaluated in the light of the meaning and the purpose of the respective legislation. The new Package Travel Directive clearly says that it aims to adapt the scope of travellers’ protection to take account of the developments on the travel market since the adoption of previous Package Travel Directive (Directive 90/314/EEC), to enhance transparency and to increase legal certainty for travellers and traders 24 . In other words, its aim is to introduce a high, uniform level of consumer protection in relation to contracts for travel packages and linked travel arrangements, taking into account the increasing use of internet booking 25 . Thus, in assessing the effectiveness of penalty it is decisive to determine, whether it is capable of reaching these goals, in particular to safeguard the level of consumer protection, established by the Directive. The test of effectiveness entails both an ex ante and an ex post element 26 . The ex ante method is based on examination whether the sanctions are theoretically capable of reaching the goals set by the legislator before the legislation enters into force, while the ex post method, on the other hand, gives an answer whether the established sanctions are actually effective in practice when the legislation is already in force 27 . In ideal case, rules on penalties embrace both aspects 28 . The requirement of effectiveness follows also from the general principle of effectiveness, laid down in Article 19(1) TEU. According to this principle, domestic procedural law must not make it impossible or excessively difficult to enforce rights derived from EU law. It also requires national law to ensure the full effectiveness of EU law. In this regard it has been stressed by Advocate General Kokott in case Berlusconi and Others that “rules laying down penalties are effective where they are framed in such a way that they do not make it 23 H. Satzger in: R. Streinz (ed.), EUV/AEUV, C.H. Beck, München, 2018, Art. 325 TFEU, para 18; H. W. Micklitz, P. Rott: Verbraucherschutz in: M. Dauses (ed.), Handbuch des Europäischen Wirtschaftsrechts, C. H. Beck, Munich, 2019, para 716. 24 Recital 2 of the Directive. 25 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=LEGISSUM :090405_1&from=EN. 26 See: M. G. Faure, Effective, Proportional and Dissuasive Penalties in the Implementation of the Environmental Crime and Ship-source Pollution Directives: Questions and Challenges, European Energy and Environmental Law Review, December 2010, p. 259. 27 Ibidem. 28 Ibidem.