On February 7, 2022, an amendment to the Passenger Name Record Data Processing Act went into effect, which is intended to offset the negative effects of the current state of the law on the airline industry.
It will soon be 4 years since Poland implemented the Directive of 27 April 2016 on the use of Passenger Name Record (PNR) data for the prevention, detection, investigation and prosecution of terrorist offences and serious crimes. Following the EU regulation, the Passenger Name Record Data Processing Act was enacted on May 9, 2018. This is a natural turn of events, and no one would have been thrilled by this fact had it not been for the subsequent activity of the border guards, which brought negative consequences for the aviation sector
TO WHOM THE NEW RULES APPLY
Based on the introduced law, each carrier is obliged to send detailed data of each transported passenger to the border guards. A special IT system, into which the carrier enters all the required information, is responsible for the implementation of this regulation throughout Europe. The problem is that at the beginning of the introduction of these requirements this system was not available in Poland for many reasons. Some carriers sent data following the previously applicable rules, while others unknowingly entered them into the system, not knowing that the Polish authority does not have access to it. Implementation of the directive by the market participants in practice took almost 3 years and currently 98% of carriers from around the world landing at Polish airports implemented its provisions.
SEVERE PENALTIES FOR FAILURE TO PROVIDE DATA
This should not be a problem, but it is. With the implementation of the Directive Poland has introduced severe penalties for each failure to provide data to the border guards – up to 40 000 PLN per flight. What is the solution in a situation where incomplete or incorrectly transmitted data from the last 3 years concerned as many as a hundred thousand flights? Commander of the Border Guard, from the beginning of 2020, began to punish carriers in an avalanche for each offence separately. The sector was threatened with penalties worth a total of PLN 4 billion! It should be remembered that most of these entities are not even based in Poland, and the decisions were sent by post. Firstly, in the era of the pandemic, their delivery was burdened with considerable problems, and secondly, most entrepreneurs receiving a letter in Polish cannot expect that they have just received a penalty of about 8000 euros, which may soon be subject to enforcement (including seizure of the aircraft at a Polish airport).
The Directive stated that it is the responsibility of Member States to provide the means for carriers to transmit PNR data to the responsible parties. The implementation in Poland was not preceded by any such process, nor was an information campaign conducted. It is difficult to require an entity that does not have a representative office of its operations in Poland to follow the Journal of Laws and the newly introduced regulations, especially if it lands in Poland several times a year.
Other EU countries were much more lenient on the market, not penalizing violations unless they occurred intentionally.
The Act was understandably strongly opposed by the aviation industry as one that could effectively impede the development of the industry in Poland, especially when the market is just beginning to recover from the pandemic. After repeated attempts by market representatives to contact representatives of the Polish government, at the end of 2021, the procedure of amendments to the Act began.
AMENDMENT AND CHANGES
On February 7, 2022, its amendment came into force, which allows carriers to catch a second breath. Under it, the Chief of the Border Guard will not initiate proceedings against carriers for the next 2 years, and any proceedings initiated to date will be suspended for the same period. Enforcement proceedings will not be possible.
The amendment to the Act, together with the amendments voted through, is a small nod to the aviation sector which has been inundated with passenger data processing proceedings in recent months. It is intended to provide time to obtain a response from the EU Commission to change its approach to the proceedings in Poland.
However, carriers should monitor legal changes so as not to expose themselves to further risks associated with the administrative penalties issued. It is certainly necessary to continue the work of the legislator to achieve the final solution that is optimal for the market.
Along with the suspension of proceedings, the time of punishability limitations was also suspended. Therefore, the Commander of the Border Guard will return to these cases in 2 years, especially since the previous 3-year period of the statute of limitations has been extended to 5 years.
In the remaining scope, the amendment implements the departmental assumptions, i.e. it allows for conducting proceedings and imposing penalties also by border guard divisions, it assumes the possibility of considering numerous violations to one administrative proceeding and thus, the amount of penalty in a given proceeding will potentially significantly increase. This will also have positive effects, as administrative courts have so far been reluctant to suspend enforcement of a decision due to an important interest of a party. If the penalty grows to several hundred or even a million PLN, such an argument will be unquestionable.
Please feel free to contact Jadwiga Stryczyńska, the author of the alert, an expert from the aviation law, transport and logistics team.