Lodz Airport: Act on PNR. Airlines do not have to pay fines yet

On 5 February, an amendment to the Act on PNR (Passenger Name Record) came into force, which is an implementation of Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of Passenger Name Record data.  This is the result of an initiative and cooperation of the entire aviation industry operating in Poland.

Passenger Name Records (PNR) are personal data which must be provided by each traveller, and which the air carrier is required to collect, store and disclose in accordance with the applicable law.  The obligation to transfer PNR data to the National Passenger Information Unit (PIU) entered into force on 29 May 2018, along with the Act of 9 May 2018 on the Processing of Passenger Name Records (Journal of Laws of 2019, item 1783).  From June to December last year, the Border Guards, which serves the function of PIU, imposed administrative penalties on carriers who failed to submit the required information in 2018.

The amendment to this act was absolutely necessary because the Act of 2018 wrongly implemented the provisions of Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of Passenger Name Record data.  The aim of the EU directive is to prevent terrorist crimes in the EU, not to punish the airlines.  Poland has implemented the Directive in a very restrictive manner, which means a very rigid definition of the rules and conditions for the transmission of passenger name record data by air carriers and the processing of such data.  It also does not provide any tools for waiving the imposition of a penalty.  At the moment, the estimated amount of fines is over four billion zloty and concerns infringements which took place between May 2018 and November 2019, i.e. nearly three years ago.  Such a situation does not occur in other European countries (in the entire Community, penalties were applied only in three cases, in Poland it is over 110 thousand cases).

In mid-January, the government submitted a draft amendment to the act without consulting it with the aviation industry.  The regulations proposed by the government were only to the detriment of the industry, because, in practical terms, they extended the limitation period for the cases from 3 to 5 years and improved the process of collecting the fines by increasing the number of entities authorized to impose them.  It is obvious that this did not improve the situation of the carriers but only allowed the Border Guards to impose penalties for infringements which would soon become statute-barred.

The amendment to the Act signed by President Andrzej Duda suspends all proceedings initiated so far for a period of two years.  During this time, no new proceedings will be initiated, the limitation period and the execution of imposed penalties, as well as enforcement proceedings, will also be suspended in view of the penalties imposed so far.

“So the aviation industry in Poland will be able to take a moment to breathe. However, if the relevant amendment to this act is not introduced within two years, the problem will return.  Another amendment should allow for greater flexibility of reaction of the Commander-in-Chief of the Border Guards to the so-called human error, i.e. typos, incorrectly-written passport numbers, etc., and offer a possibility of abolition for carriers which should apply since the entry into force of the act, i.e. since 9 May 2018. Therefore, penalties should not be imposed automatically, but should relate to situations which are deliberate breaches and have a significant impact on the internal security,” believes Dr. Anna Midera, the President of the Airport in Łódź.

During the meeting of the parliamentary administration and internal affairs committee, the government representative publicly declared his will to work out amendments to the regulations aimed at minimization of the size of the penalties.  Therefore, it is imperative for us to ensure that another amendment to the Act on PNR is made, which will implement the EU directive in this respect in a proper and decent manner.  In such a way as to pursue its primary goal, which is to detect and combat terrorist crimes, and not to arbitrarily punish the airlines.  Especially that airlines, the Border Guards, as well as the Ministry confirm that currently 99 percent of flights are carried out in accordance with the requirements and carriers correctly provide passenger data to the Border Guards.  The goal of the EU directive has been achieved.

Representatives of the entire aviation industry in Poland have been involved in the matter of persuading parliamentarians to prepare an amendment to the Act on the Processing of Passengers’ Personal Data:

• Joanna Wolf, Director of IATA Polska
• Andrzej Kobielski, President of BARIP (Council of Airline Representatives in Poland), Vice President of the Management Board of Enter Air
• Agnieszka Jankowska, Member of the Management Board of AmCham Poland,
• Anna Midera, President of Lodz Airport Central Poland / Porty Regionalne
• Michał Kaczmarzyk, President of the Management Board of Ryanair Sun
• Karolina Lenarczyk - Bonarska, Legal Counsel, Court Mediator Kancelaria Karolina Bonarska - Lenarczyk