Collective Commentary about the New Package Travel Directive

ARTICLE 25 | MATIJA DAMJAN AND KARMEN LUTMAN 535 with the application 49 . The CJEU further defined dissuasiveness in economic terms in case C-565/12 Le Crédit Lyonnais where it held that if the effects of the penalty of forfeiture of entitlement to interest are offset by the application of interest at the increased statutory rate, it necessarily follows that that penalty is not genuinely dissuasive 50 . Advocate General Geelhoed suggested in his opinion in case C-304/02 Commission v France that offences need to be the subject of a clear and credible enforcement policy, which implies that breaches of law are systematically followed up by either administrative or criminal proceedings leading to effective penalties being imposed. Such an enforcement policy must have sufficient credibility to act as a deterrent. Furthermore, he stressed that potential negative consequences of infringing the fisheries provisions must be perceived as outweighing the economic benefits of nonobservance of these rules 51 . The CJEU agreed and held that dissuasiveness of sanctions requires that there must be a serious risk for offenders that they will be detected and have sufficiently severe penalties imposed on them 52 . Considering the dissuasive nature of the sanctions in case C-189/07 Commission v Spain 53 , the CJEU looked at the number of sanctioning procedures initiated, their duration and the number of fines that were actually paid. On these grounds, the Court ruled that Spain failed to impose penalties which have a deterrent effect on those responsible for infringing EU law provisions 54 . Article 25 of the Directive takes the procedural aspect of dissuasiveness into account by requiring Member States not only to lay down the rules on penalties applicable to infringements of rules relating to package travel and linked travel arrangements, but also to take all measures necessary to ensure that they are implemented. Another procedural aspect, pointed at in legal theory is that lengthy and costly litigations could be more dissuasive for companies than the 49 Case 14/83 Sabine von Colson and Elisabeth Kamann v Land Nordrhein-Westfalen  1984  , paras. 23 and 28. 50 Case C-565/12 Le Crédit Lyonnais SA v Fesih Kalhan  2014  , paras. 51 and 53. 51 Opinion of Advocate General Geelhoed delivered on 29 April 2004 in case C-304/02 Commission of the European Communities v French Republic  2005  , para. 73. Advocate General Kokott similarly held, in case C-387/02 Silvio Berlusconi, that what is decisive in assessing the dissuasiveness of a penalty is not only the nature and level of the penalty but also the likelihood of its being imposed. Anyone who commits an infringement must fear that the penalty will in fact be imposed on him. 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 89. 52 Case C-304/02 Commission of the European Communities v French Republic  2005  , para 37. 53 Case C-189/07 Commission of the European Communities v Kingdom of Spain  2008  . 54 “Effectiveness, Proportionality and Dissuasiveness.” Eastern and Central European Journal on Environmental Law, vol. 15, no. 2, 2012, p. 11.