Collective Commentary about the New Package Travel Directive

ARTICLE 25 | MATIJA DAMJAN AND KARMEN LUTMAN 531 practically impossible or excessively difficult to impose the penalty provided for (and, therefore, to attain the objectives pursued by Community law).” 29 Thus, in order to be in line with the principle of effectiveness, procedural rules regarding penalties should not render application of EU law impossible or excessively difficult. When assessing the effectiveness of procedural rule from this point of view, the CJEU takes into consideration especially its role in the procedure, its progress and its special features, viewed as a whole, before the various national instances 30 . The effectiveness is also closely linked to proportionality and dissuasiveness. Accordingly, a penalty is considered to be effective in protecting travellers’ rights if it dissuades traders from violating these rights. On the other hand, if the rules on penalties are proportionate, which means that they provide for stricter mechanisms for more serious violations, this increases their effectiveness 31 . 3. PROPORTIONALITY The next requirement is that the penalties prescribed by Member States for infringements of national implementing rules must be proportionate. Proportionality is a relational characteristic whose content can only be defined by reference to some other measure. The Directive does not specify in relation to what the proportionality of penalties should be assessed, which is also the case with other directives requiring Member States to provide for proportionate penalties. Nevertheless, there is little divergence in legal theory regarding the meaning of this term. A typical definition is that proportionate penalties must adequately reflect the gravity of the violation and not go beyond what is necessary to achieve the desired result 32 . This reflects how the CJEU consistently defines the principle of proportionality in general. In case C-220/01 Lennox, for example, the CJEU held that “the principle of proportionality, which is one of 29 Opinion of Advocate General Kokott delivered on 14 October 2004 in joined cases C-387/02, C-391/02 and C-403/02 Silvio Berlusconi and Others  2005  , para 88. 30 M. Klamert, B. Schima in: M. Kellerbauer, M. Klamert, J. Tomkin (eds.), The EU Treaties and the Charter of Fundamental Rights, Oxford University Press, 2019, Art. 19, p. 184, para. 34. 31 See also: 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. 32 “Effectiveness, Proportionality and Dissuasiveness.” Eastern and Central European Journal on Environmental Law, vol. 15, no. 2, 2012, p. 11.