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NSA: PNR Regulations in Poland Incompatible with EU Directive

The Supreme Administrative Court (NSA) has acknowledged that the provisions of the PNR Act, which require carriers to transmit PNR data for all intra-EU flights, are not aligned with the PNR directive.

Lack of compliance with EU regulations

In May, we reported on two judgments issued by the NSA in cases where airlines were fined for failing to provide PNR data concerning intra-EU flights. In August, the reasoning for these judgments was published on the NSA’s website.

In their content, the NSA explicitly indicates that a juxtaposition of the theses appearing in the CJEU case-law, including in the key verdict in case C-817/19, with the content of the provisions of the PNR Act leaves no doubt that the Polish provisions have been implemented incorrectly. They are inconsistent with the provisions and objectives of the PNR directive.

The NSA initially highlighted the lack of justification for the requirement for carriers to transfer PNR data, emphasizing that such an obligation is unwarranted in the absence of a tangible, imminent or foreseeable terrorist threat in a given Member State.

Wrong decisions on fines for lack of PNR data

The decisions imposing fines for failure to provide PNR data relating to intra-EU flights were issued incorrectly. They should therefore be overturned on appeal in administrative or administrative court proceedings.

It is highly likely that these judgments in question will influence the future jurisprudential practice of administrative authorities. As a result, they may stop imposing fines on air carriers in connection with the organization of intra-EU flights.

The above is obviously good news for air carriers. Indeed, the number of decisions imposing fines under the provisions of the PNR Act should decrease. It should also be assumed that it will not be necessary to take the case all the way to the NSA for a possible fine to be overturned.

Decisions imposing fines for failure to transfer PNR data on intra-EU flights were issued incorrectly and should be overturned in administrative or administrative court proceedings.

NSA calls for amendment of PNR provisions

In the wording of the justifications for the judgments in question, the NSA points out that it is incumbent on the legislative and executive authorities to amend the current provisions of the PNR Act so that they are in line with EU law. A judicial review mechanism for the selection of intra-EU flights that, in the light of the current assessment, need to be included in the PNR processing regime should also be introduced.

It remains to be seen whether this change in the content of the legislation will actually come to fruition.

If you are looking for assistance with issues related to the transfer of PNR data, our company Dudkowiak Kopeć & Putyra has extensive experience in this field. We provide legal assistance of the highest quality. You are welcome to contact us at: [email protected]

Author team leader DKP Legal Michał Szczepaniak
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