Collective Commentary about the New Package Travel Directive

ARTICLE 25 | MATIJA DAMJAN AND KARMEN LUTMAN 533 repeat offences should be sanctioned more severely than one-time violations of rules; intentional violations more severely than negligent ones; and the severity of the penalty should also reflect the extent of harm that the violation caused to the travellers. The importance of linking the sanction to the harm done is also supported by economic analysis, which stresses that a potential violator might have an incentive to commit a more serious offence rather than the less serious one if both were to carry an equally heavy penalty 38 . On the other hand, a penalty might be disproportionate if it was so high to force a company out of business in case of a particularly grave infringement 39 , particularly if this could lead to a market disruption 40 . The severity of penalties is easy to quantify in case of simple monetary fines, but can be more difficult to compare when other types of sanctions are concerned. Advocate General Ruiz-Jarabo Colomer pointed out that criminal penalties are of greater severity than administrative penalties. Although both categories are manifestations of the penalising authority of the State and obey the same ontological principles, the less stringent nature of administrative penalties entails a relaxation of the safeguards which must accompany their imposition 41 . The principle of proportionality is relevant not only when prescribing but also when applying the prescribed sanctions. Competent authorities may choose to apply certain tolerance limits within which a breach of law does not yet have to be sanctioned and the offender may be only reprimanded instead 42 . Advocate General Kokott held that this would be only acceptable where the offence is not capable of frustrating the objective pursued by the directive 43 . 38 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. 262. 39 C. Tobler, Remedies and sanctions in EC non-discrimination law, European Network of Legal Experts in the non-discrimination field, European Commission, Brussels, 2005, p. 10. 40 H. W. Micklitz, P. Rott: Verbraucherschutz in: M. Dauses (ed.), Handbuch des Europäischen Wirtschaftsrechts, C. H. Beck, Munich, 2019, para. 721. 41 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. 47. 42 H. W. Micklitz, P. Rott: Verbraucherschutz in: M. Dauses (ed.), Handbuch des Europäischen Wirtschaftsrechts, C. H. Beck, Munich, 2019, para 722. 43 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. 96.