At this stage, we are aware that several cases are going through the Polish court but there is no clear answer nor timeline to clear the issue.

To give you better advice on what to do we are pleased to send you the top-level guidance by Mr Paweł Mazur, Lawyer and partner at Wardynski & Partners. Please note this is general information and you need to consult your counsel to see what is applicable and the best course of action for your situation.

• What do you suggest an EBAA member should do upon receipt of a fine by the authorities

“Just to make it clear, the first communication from the authorities (Polish Border Guard) should not yet be fine but only notice that investigation is pending into failure to provide PNR data on one specific flight. Unfortunately, all official correspondence in such proceedings comes in Polish and must be returned in Polish as well, therefore without own Polish speakers (or translation services) an operator can do little to affect the course of proceedings. Nevertheless, in order to weed out the simplest cases (obvious mix-ups by the authorities) the member in question should at least verify the data of the flight to see if the member had indeed operated it and, if so, he should contact its Polish agent to check if and when they provided the required PNR data to the authorities.”

“As for the recommendation, from a legal perspective, it is best for the member to promptly consult Polish lawyers upon receipt of such notice to be advised on their legal situation and possible outcomes, before taking any action. However, if a member voluntarily decides not to seek legal representation for a given case (at least at first) what they can do is to send a short letter in their language informing the Polish authorities that they received a communication in a language they do not understand and thus they are unable to respond or comment and can only say that they are not aware of any legal problems in Poland. Such a response will make the proceedings more difficult for the Polish authorities and will provide some grounds to challenge the decision on formal grounds if the member decides to retain lawyers at a later stage. In any event, they should not provide any additional information nor concede anything before the authorities, unless they are certain PNR data was provided to the Border Guard on time in the proper manner.”

• At what stage should EBAA members make use of a lawyer

“Optimally, legal advice should be sought promptly after receipt of a first notice of an investigation from the Polish Border Guard. This is especially true for those members who have higher exposure due to a large number of flights to or from Poland since the PNR rules came into force on 29th May 2018. Judging by recent actions of the authorities, after they start investigation into the first flight of a given operator they quickly move to commence proceedings in the later flights and can start dozens of cases in a matter of weeks. At the same time, each flight where PNR data of passengers (or a single passenger!) boarding and leaving the craft was not provided on time (or even not following the right protocol) the fine is a fixed PLN 40,000 (approx. EUR 10,000) – in consequence the exposure can increase rather quickly.”

“If the member intends to have any chance of avoiding the fine, they should contact a Polish Lawyer at the very latest shortly after receiving a decision imposing the fine which will likely come within one or two months from the beginning of the investigation. The deadline for appeal is 14 days (30 days for lawsuit against it to an administrative court) and if it expires the decision becomes final and enforceable, and can no longer be questioned even if it is objectively wrong (with some exceptions concerning especially egregious errors of the authorities). Please let us know if you have been successful in fighting there unfair fines or if you have any tips or suggestions on how to deal with it.”

Below you will find the contact details for law firms in Poland besides Wardynski and partners that we are aware of that have been dealing with PNR issues so far.

EBAA members & lawyers:

• Paweł Mazur Wardynski & Partners
• Michał Dudkowiak Dudkowiak & Partners
• Jadwiga Stryczyńska WKB Lawyers
• Martyna Ryś-Wilgus PETERKA & PARTNERS
• Beata Składanek-Wikieł PETERKA & PARTNERS
• Michał Jaworski JMK Legal

Other lawyers

• Jolanta Dabrowicz DLA Piper
• Anna Burchacińska-Mańko MMM Legal

Please note EBAA has no links with any of these law firms. If you are aware of any other law firms working on this issue please let us know and we will add them to this list.Should you require PNR support for flights to Poland or other EU countries please be aware of the special offer that PNR specialist MATIC has created for EBAA members.