11 January 2022: ERA continues to support the actions against Polish and EU authorities on the issue of the implementation of the passenger name record (PNR) Directive in Poland. We recently joined a collation of Polish players to fight against a new amendment being discussed in the Parliament on fines to be imposed by the Polish authorities to carriers who have not submitted PNR data.

ERA fully supports the objectives of the Directive (EU) 2016/681 of the European Parliament and of the Council of 27 April 2016 on the use of PNR data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime. Most European Member States have fully implemented the EU Directive and Poland has been proactive in implementing it into the Polish PNR Act dated 9 May 2018.

Unfortunately, during the first few months after entry into force of the Polish PNR Act, it appeared that the IT infrastructure of the Polish authorities, set up to receive the required information from air carriers operated according to different IT and operational models, was not fully able to do so. This was achieved progressively during the course of 2018 and throughout 2019 and 2020.

As a result of the above situation, several operators flying into Poland were unable to properly comply with the newly-implemented law in the provided timeline, while in parallel they were working with the Polish authorities to ensure that the PNR submissions were allowed to be executed, both from the air carriers’ as well as authorities’ side. This issue was addressed by the Polish border force from 2019 onwards.

ERA was alerted last October by some of its members that the Polish authorities have unfortunately adopted a punitive approach when implementing the EU PNR Directive, specifically when compared to the implementation in other European states. Over the last months, some operators have received large financial penalties (sometimes thousands of Euros) and/or notifications relating to flights that occurred in 2018 and 2019. We consider that these measures are in contradiction with the spirit and the letter of Article 14 of Directive (EU) 2016/681, as we believe that these sanctions are neither proportionate nor effective. Furthermore, they cover a period during which the implementation of the Polish PNR Act did not fully allow all operators to be properly compliant according to their different operating and IT models, despite them doing their best to comply.

The Polish government is now amending again its regulation to extend the interpretation of the Directive and expose a larger number of operators to fines. These measures taken by Polish authorities seems disproportionate to the least, and are seriously damaging the aviation sector, already suffering from the COVID-19 crisis. In addition, this does not support the recovery of a sector contributing to the European and the Polish economy and connectivity.

Together with other aviation players and associations, ERA respectfully asks the Polish authorities to cease the issuance of financial sanctions and adopt a less punitive but more educational approach when dealing with carriers, including the adoption of a corresponding legal framework if and when needed to do so to the benefit of all actors of the aviation value chain and ultimately the citizens we all serve.

Lately another amendment has been proposed, to be adopted by end January 2022, which seems to extend the interpretation of the Directive and treat PNR and API as one. Meaning that for instance, a charter carrier without reservations systems nor DCS operations, which does not collect the traditional PNR data, would be in breach of the PNR Polish implementation rules.

The Polish Border Guard has calculated that the amount of expected penalties due to this extensive interpretation of the EU regulation, would exceed 2 billion of Polish Złoty and will be imposed towards approximately 500 companies worldwide. 

ERA members are invited to join the coalition and sign the petition: https://www.dudkowiak.com/sectors/aviation-law-poland/pnr-act-petition.html [1]