Collective Commentary about the New Package Travel Directive

534 COLLECTIVE COMMENTARY ABOUT THE NEW PACKAGE TRAVEL DIRECTIVE 4. DISSUASIVENESS Finally, the Directive requires the penalties provided for by Member States to be dissuasive. This is generally taken to mean that they should deter the offender from repeating the offence and discourage other potential offenders from committing the same offence 44 . Of course, the criteria of effectiveness and dissuasiveness are closely interlinked, since sanction can be seen as effective if it is proportionate to the offence and dissuasive. One proposed distinction is that effectiveness relates primarily to the restoration of harm caused by an offence, whereas dissuasiveness criteria relates to the prevention of future harm 45 . Faure points out that dissuasion is based on the idea that the foresight of a penalty will lead potential perpetrators to comply with the law if the costs of violation are higher than the benefits thus obtained 46 . It should not be more profitable for the offender to keep on offending and pay the penalties than to comply with the law. The deterrence, however, is not only a function of the amount of the fine prescribed but also depends on the probability that the violator gets apprehended, that the case will be prosecuted and that the competent authority will impose the sanction 47 . Faure also calls attention to empirical evidence showing that systems which allow administrative fines in addition to criminal penalties can add substantially to dissuasion and to the effectiveness of the enforcement system, simply because cases which are not prosecuted via the criminal procedure can still be penalised with an administrative fine 48 . The CJEU first dealt with deterrent effect of sanctions provided in national implementing legislation in case 14/83 Colson, in the context of unlawful discrimination in employment. It held that in order to have a real deterrent effect on the employer, the compensation for the breach of the prohibition of discrimination must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation such as, for example, the reimbursement only of the expenses incurred in connection 44 “Effectiveness, Proportionality and Dissuasiveness.” Eastern and Central European Journal on Environmental Law, vol. 15, no. 2, 2012, p. 11. 45 Ibidem, p. 12. 46 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. 260. 47 Ibidem. 48 Ibidem, p. 268.