Collective Commentary about the New Package Travel Directive

532 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE the general principles of Community law, requires that measures adopted do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.” 33 Advocate General Kokott recalled this position in her opinion in case C-387/02 Silvio Berlusconi, where she defined a penalty as proportionate where it is “appropriate (that is to say, in particular, effective and dissuasive) for attaining the legitimate objectives pursued by it, and also necessary. Where there is a choice between several (equally) appropriate penalties, recourse must be had to the least onerous. Moreover, the effects of the penalty on the person concerned must be proportionate to the aims pursued.” 34 The main objective pursued by penalties is to sanction violations of rules relating to package travel and linked travel arrangements. For this purpose, the penalty must be proportionate to the severity of the offence. Firstly, the importance of the rule breached must be considered. Advocate General Ruiz- -Jarabo Colomer suggested in case C-176/03 Commission v Council that a penalty must go beyond a mere restoration of the situation existing prior to the contravention, since a punishment in the true meaning of the word must be more or less severe according to the importance of the legal interest under threat and the degree of social disapproval of the infringing behaviour 35 . Advocate General Sharpston opined in case C-348/04 Boehringer Ingelheim that a mere breach of procedural requirements, such as a failure to give notice, should not be sanctioned as severely as a breach of one or more of the substantive conditions, because that would be disproportionate 36 . The CJEU provided some further criteria for assessing the severity of the offence in case C-388/13 UPC Magyarország where it held that to ensure the proportionality of sanctions for unfair commercial practices, Member States must take due account to factors such as the frequency of the practice complained of, whether or not it is intentional, and the degree of harm caused to the consumer 37 . Accordingly, 33 Ibidem. 34 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. 90. 35 Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 26May 2005 in case C-176/03 Commission of the European Communities v Council of the European Union  2005  , para. 46. 36 Opinion of Advocate General Sharpston delivered on 6 April 2006 in case C-348/04 Boehringer Ingelheim KG and others v. Swingward Ltd  2007  , para. 76. 37 Case C-388/13 Nemzeti Fogyasztóvédelmi Hatóság v UPC Magyarország kft  2015  , para. 58.