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  • Olga Lubryczyńska - Budrewicz

Decision on PNR after the elections?

More than a year ago, in January 2022, during a meeting of the Parliamentary Committee on Administration and Internal Affairs, a discussion was held with representatives of the aviation industry on the government's proposed amendments to the Passenger Name Record (PNR) processing law.

The draft of the above mentioned act presented by the government included proposals to spread the possibility of imposing administrative fines on airlines for violations of the obligation to transfer PNR data over a longer period of time, to allow multiple violations to be covered by a single investigation and decision, and to introduce the authority to impose administrative fines by commanders of Border Guard divisions. The government requested the urgent implementation of the act "considering the difficult financial situation of the aviation industry."

An important part of the parliamentary Committee's meeting was the intervention of airline representatives on the Polish legislation and its consequences. The airlines called for a change in the penalty scale under the PNR law and the cancellation of pending proceedings.

Let's give ourselves some time.

Airline representatives argued their position with the crisis the industry was facing as a result of the COVID-19 pandemic and the problems met in the transfer of data during the early months of the new act.

Minister of Ministry of Internal Affairs and Administration, Bartosz Grodecki, in response to the carriers' request for cancellation of the fines imposed, pointed out that there is no legal possibility of introducing an amnesty. During the Commission's meeting, he also indicated that there is no possibility of amending the law with regard to the penalties imposed due to the risk of violating the EU directive.

The most important conclusion to come out of the parliamentary committee, however, seems to be that the solution proposed by the government, i.e., extending the deadline for paying the financial penalty by 24 months, was meant to be a compromise that would provide additional time to move forward with the changes demanded by the airlines during the meeting.

Minister Bartosz Grodecki assured that the government would provide support to the carriers through a sectoral commission to implement solutions allowing for the cancellation of financial penalties imposed on aviation entities.

Following the reported needs of the airlines, amendments were proposed by opposition

Wydłużone trasy, zwiększone koszty linii lotniczych w związku z konfliktem zbrojnym na Ukrainie
FlightRadar - samoloty omijają zamknięta przestrzeń powietrzną

members of parliament to the bill with the aim of mitigating the existing regulations. Both the government representative participating in the Commission meeting and the majority of the MPs rejected these amendments.

An amendment to the act went into effect on February 5, 2022, as drafted by the government, allowing airlines to postpone payment of imposed administrative fines for next 24 months.

Nineteen days later, the war in Ukraine began, causing destabilization of energy market prices and restrictions on airspace accessibility. Another crisis arose for the airlines. Unused opportunities

Regarding the imposed administrative fines and the associated financial burdens on carriers, it is necessary to emphasize that the Passenger Name Record (PNR) Act implemented in 2018, Article 76, included the option to exempt the application of Article 64 of the Act, which pertains to imposing financial penalties, for a period of 6 months from the date of entry into force for each airline that took actions aimed at ensuring technical conditions enabling efficient and effective transmission of PNR data to the Passenger Information Unit (PIU).

An airline willing to take advantage of this opportunity had to submit a written application to the Commander in Chief of the Border Guard within 14 days from the date of entry into force of the law to be included in the list of airlines that meet the condition of transferring PNR data to the PIU. contacted the spokesperson of the polish Border Guard requesting information on the above matter. In response, it was conveyed that despite meetings held by the Border Guard with representatives of the airlines, an informational campaign conducted at that time, and ongoing correspondence informing the aviation entities about the adopted solutions regarding the method and deadlines for connecting to the National Passenger Name Record (PNR) Information System (KSI PNR), only 38 carriers took advantage of the statutory exemption, i.e., the application of Article 76 of the PNR Act.

"The remaining carriers, by not fulfilling the formalities associated with submitting the relevant notification within the statutory deadline, did not benefit from the privilege of obtaining the compliant carrier status. Therefore, they were obliged to transmit PNR data from the date of the PNR Act's entry into force. It should be noted that the informational campaign conducted by the Polsih Border Guard was an additional initiative and was not a legal requirement," added spokesperson Lieutenant Anna Michalska.

We'll have to wait for the decision.

Considering not only the Minister's declaration regarding the temporary nature of the adopted change but also the fact of the judgment issued by the Court of Justice of the European Union (CJEU) in December of last year regarding the PNR Directive, PolskaSky directed questions to the Ministry of Internal Affairs and Administration (MSWiA), including whether any work is being undertaken regarding the PNR Act.

In response, a spokesman for the Ministry of Internal Affairs and Administration said that "there is no legislative work being carried out at the Ministry of Internal Affairs and Administration to amend the above-mentioned law."

We have also managed to establish that in 2022, letters regarding the PNR matter were sent to the European Commission by both the airlines and the polish Ministry of Internal Affairs and Administration (MSWiA).

According to a statement made during a parliamentary committee, Minister Bartosz Grodecki appealed to the European Commission to establish consistent solutions for all EU member states on the relevant directive, particularly with regard to withdrawal of fines imposed on carriers in 2018-2021, taking into account their difficult financial situation. He also expressed Poland's full commitment to the topic.

We also asked the spokesperson for Commissioner for Migration and Home Affairs, Yiva Johansson, about the actions taken in this regard.

" During the first half of 2022, there have been contacts on relevant legal requirements set out by the PNR Directive between Commissioner Johansson and representatives of the air industry and of the Polish government. ," the spokesperson informed. “ In this context, it was underlined that the Directive leaves Member States a margin of discretion when giving effect to Article 14 of the PNR Directive and when determining the appropriate penalties to be imposed in individual cases” The spokesperson also added that the Commission maintains regular contacts with member states and air carriers on the implementation and application of the PNR directive.

Despite the very general statements given to PolskaSky by both the Ministry of Internal Affairs and Administration (MIA) and Commissioner Johansson's spokesman, a multilateral dialogue to implement the foregoing solutions cannot be excluded. The contributing factor of an election year in Poland, however, seems unfortunate in this matter.

Airlines are highly determined to take steps to suspend administrative proceedings related to PNR. It cannot be ruled out that airline carriers, considering the Court of Justice of the European Union (CJEU) judgment dated June 21, 2022, may opt for further legal actions to evaluate the compliance of the implemented solutions and, consequently, the validity of administrative decisions issued by the Commander of the Border Guard regarding the imposed penalties.

Uncertain Future

The situation for airlines is challenging. During the EUROCONTROL NM User Forum 2023 held on February 2-3, it was assured that there is a demand for "flying" , but not everywhere in Europe has air traffic returned to the levels of 2019.

According to IATA experts, macroeconomic factors such as inflation and fuel prices remain the main challenges for the aviation industry.

As early as January, American financial experts predicted that the price of a barrel of oil could exceed $100 again by mid-year. If this worst-case scenario materializes, airlines will have to revise their costs once again, while also expecting wage increases.

As reported by Piotr Samson, the President of Polish Civil Aviation Authority, on TVN24, due to the war in Ukraine and potential strikes by aviation personnel, "passengers will face difficulties in air traffic this year."

Airlines are burdened with debt, and the post-COVID reality has turned out to be different, especially regarding the business passenger who used to be a significant source of profit before the pandemic. The aviation market continues to face challenges. It should be noted that the persistent uncertainty discourages investors from engaging capital in an unprofitable airline business.

It seems likely that the amendment to the PNR Act will not be implemented during this parliamentary term. The temporary nature of the solutions discussed in the Committee will last almost the entire 24-month period until the start of the new government's term, during which a final decision on PNR will be urgently made.



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