Poland is one of the countries where air operators have faced severe consequences of non-compliance with the local PNR regulations. This has resulted in numerous court appeals against the penalties imposed by the Polish Border Guard. Last month, the Polish Supreme Administrative Court issued a landmark ruling that brings implications for the air operators flying in and out of Poland.
PnrGo has reached out to Brzozowski & Partners, the law firm that won this case, to ask what the ruling actually means. We spoke with Wojciech Firek, Trainee Attorney-at-law at Brzozowski & Partners and PhD Candidate.
What is the Polish PNR landmark ruling?
- The Supreme Administrative Court in Poland has just issued the first favourable ruling in a Polish PNR court case. What did the Court rule and what was the rationale for the verdict?
As a matter of fact, these were two parallel cases. They both concerned a German carrier from the business aviation sector on whom the Commander-in-Chief of the Polish Border Guard imposed two administrative penalties for failing to provide the PNR data during flights conducted in 2018. The total amount of penalties for the carrier summed up to 80,000 PLN (approx. 18,700 EUR). Both decisions were appealed to the administrative court who upheld the penalties. Ultimately, on 23rd May 2024, the Supreme Administrative Court issued two rulings that overturned the lower court's rulings and the contested decisions on administrative penalties. These are the first such rulings in PNR cases in Poland. The main foundation here was the European Directive No. 2016/681 (PNR Directive) and the related CJEU judgement in case no. C-817/19. We are very glad that the Supreme Court agreed with our legal arguments. The rulings are now final so the air operator is no longer subject to the previously imposed penalties.
- Could you tell us how exactly these new rulings relate to the European PNR Directive and the above-mentioned judgement delivered by the Court of Justice of the European Union?
Yes, these are the key points. In Poland, the obligation for air carriers to submit PNR data arises from Article 5 of the Act of 9 May 2018 on the Processing of Passenger Name Record Data. Under this act, the air carrier is required to transfer PNR data to the national Passenger Information Unit twice, at the specified times: 1) between 48 and 24 hours before the flight, and 2) immediately after the completion of passenger boarding. Failure to transmit the data results in an administrative penalty of 20,000 PLN (~4,700 EUR), with a maximum of 40,000 PLN (~9,300 EUR) for one flight. Importantly, the Polish PNR Act is an implementation of the Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016, known as the "European PNR Directive". The directive binds the addressed member states regarding the outcome, but leaves the national authorities freedom to choose the form and the means. Now, the question is whether Poland has appropriately implemented the provisions of the European PNR Directive... In our opinion, the answer is “no” because the provisions of the PNR Act should not be applied automatically to all intra-EU PNR flights. This stance has been confirmed by the Court of Justice of the European Union in the judgement no. C-817/19, which answered ten preliminary questions from the Belgian Constitutional Court. The CJEU stated, among other things, that the processing of PNR data should be limited to specific connections or specific airports where there is a risk of a real and current or foreseeable terrorist threat.
- Currently, we only have the oral justification given by the Polish Supreme Administrative Court during the announcement of the verdict after a hearing in May. We are still waiting for the written justification – can we expect it to bring any new information that would be helpful for carriers who have taken similar legal actions in Poland? When will this written justification be published?
The oral justification has outlined the main motives of the Polish Supreme Administrative Court. The written justification should provide a full and detailed rationale for both rulings (the case reference numbers are II GSK 444/21 and II GSK 395/22). Normally, the Court ought to deliver their written justification within 14 days from the announcement of the verdict. In reality, it might take a bit longer though.
Can this PNR court case affect the Polish judicial line of thought and the Polish legislation?
- The European Business Aviation Association describes the recent rulings of the Supreme Administrative Court as a “significant legal victory in Poland, marking a historic precedent for the PNR issue in the country.” Will lower courts now have to follow the same path? How does this affect similar proceedings involving other carriers?
These are the first final rulings in Poland that overturn the PNR penalties imposed on a carrier. It is a groundbreaking moment for other carriers affected by similar penalties issued by the Polish Border Guard. The scale of the PNR penalties in Poland is enormous. Let’s mention once more that, for a single flight, a carrier can receive a penalty of up to 40,000 PLN (~9,300 EUR). In practice, carriers may operate several flights a day. We are very pleased with EBAA’s opinion. Brzozowski & Partners Law Firm is a member of the association and we have a great collaboration on a European level. Through this collaboration and our experience, we can protect the interests of air carriers from the European Union, the USA, and several other countries. The favourable rulings of the Supreme Administrative Court will definitely influence the rulings of Polish lower courts in other PNR cases. Our law firm is currently working on over 150 similar proceedings, and we have already obtained several favourable first-instance court rulings overturning administrative penalties. The Polish jurisprudence is definitely shaping up positively, in line with our legal arguments.
- The judicial line of thought is one thing... What will happen to the Polish PNR Act? Is the Polish Border Guard now obligated to follow the Supreme Administrative Court's rulings when it comes to imposing similar penalties in the future?
Great question. Any amendment of the PNR Act falls within the competence of the Polish legislature, which is a separate branch of power from the judiciary here. There has been a debate for several years about the need for legal changes. Both the aviation sector and the Polish Border Guard see this need… But we are yet to learn how the Polish legislature will act. They should fully comply with the CJEU judgement and the Polish court rulings.
- What about the carriers who have already paid the penalties? Is there any path for them to overturn the final decisions that imposed the penalties and recover the lost funds?
Overall, cases concluded with a final administrative decision can be reopened. However, this possibility depends on the factual circumstances, and these have to be assessed on a case by case scenario. Some of the key factors here would be whether the carrier was granted an active participation at every stage of the proceedings and whether they had the opportunity to take a stance on the collected evidence. We have come across some cases where all the correspondence was sent via email, the decision subsequently got lost in the mail, and as a result, the carrier did not have fair opportunities for defence and participation in the proceedings.
The law firm that won the first PNR court case before the Polish Supreme Administrative Court
- Brzozowski & Partners have won the first cases before the Polish Supreme Administrative Court regarding PNR penalties. Could you say a few words to our readers about your law firm and the Aviation Law Team that handled those cases?
Thank you! Our law firm has been actively engaged in the PNR cases from the very beginning. Our Aviation Law Team filed the first court appeals and complaints in Poland, arguing that the decisions were unjust and contrary to EU law. After a few years of hard work, the Supreme Administrative Court confirmed our legal stance. Thanks to the experience gained and the European cooperation, we have an in-depth knowledge of the PNR cases and we can professionally represent the interests of air carriers in courts.
On a personal note, it has given me a lot of satisfaction to work on these cases with Michał Jaworski, Attorney-at-law and Piotr Brzozowski, Attorney-at-law as they are both great lawyers and big aviation enthusiasts.
About Brzozowski & Partners
Brzozowski & Partners (formerly Jaworski & Partners) Law Firm provides comprehensive legal services to Polish and international clients, both corporate and individual. The firm specialises in Aviation Law, and additionally collaborates with many experts in the field of finance, banking, taxation, and public relations to meet all the challenges posed by today's legal services market.
Brzozowski & Partners - Contact Information:
Phone: +48 733 337 101 / +48 12 352 25 33
Email: office@jmklegal.pl
Address: ul. W.E Radzikowskiego 1, 31-305 Kraków, POLAND
If you are looking for automated passenger and crew data transfer solutions to easily comply with the local requirements around Europe, Middle East, or North America, contact PnrGo and schedule a call to learn more.
