ICLG

The International Comparative Legal Guide to:

Aviation Law 2015 3rd Edition A practical cross-border insight into aviation law

Published by Global Legal Group, with contributions from: Alexander Holburn Beaudin + Lang LLP Ali Budiardjo, Nugroho, Reksodiputro Arnecke Siebold Rechtsanwälte Partnerschaftsgesellschaft Arte Law Firm Bahas, Gramatidis & Partners Cabinet BOPS – SCP Bouckaert Ormen Passemard Chacón & Rodríguez, S.C. Christodoulou & Mavrikis Inc. Condon & Forsyth LLP DDSA – De Luca, Derenusson, Schuttoff e Azevedo Advogados Dingli & Dingli Law Firm Kaye Scholer LLP Kromann Reumert Kubes Passeyrer Attorneys at Law

Locke Lord Edwards LLP Maciel, Norman & Asociados McAfee & Taft MMMLegal - Legal Counsels NDR – Neville de Rougemont & Associates Ozturk & Partners Rojs, Peljhan, Prelesnik & Partners Salazar & Asociados Studio Pierallini Taylor English Duma LLP Ventura Garcés & López-Ibor Abogados VISCHER AG Worldwide Airports Lawyers Association (WALA)

The International Comparative Legal Guide to: Aviation Law 2015 General Chapters: 1

The Use of Personal Data by the Commercial Aviation Industry – Alan Meneghetti, Locke Lord Edwards LLP 1

2 Contributing Editors Alan Meneghetti, Locke Lord Edwards LLP and Philip Perrotta, Kaye Scholer LLP

The Aviation Industry – Constant Change Leading to Tales of the Unexpected – Philip Perrotta, Kaye Scholer LLP 4

3

Recent Developments in U.S. Aviation Law – 2015 – Unmanned Aircraft Systems – Donald R. Andersen, Taylor English Duma LLP

Head of Business Development Dror Levy

4

Sales Director Florjan Osmani

5

Commercial Director Antony Dine Account Directors Oliver Smith, Rory Smith

8

The Cape Town Convention: An Evolving Process (with Side Notes on Selected Issues) – Erin M. Van Laanen & Maria E. Gonzalez, McAfee & Taft

11

The Need to Extend WALA’s Presence in the Airport Industry – Alan Meneghetti & Michael Siebold, Worldwide Airports Lawyers Association (WALA)

16

Country Question and Answer Chapters:

Senior Account Manager Maria Lopez

6

Argentina

Maciel, Norman & Asociados: Rogelio N. Maciel & Maria Laura Maciel

19

Sales Support Manager Toni Hayward

7

Austria

Kubes Passeyrer Attorneys at Law: Dr. David Kubes

26

8

Bolivia

Salazar & Asociados: Sergio Salazar-Machicado & Ignacio Salazar-Machicado 32

9

Brazil

DDSA – De Luca, Derenusson, Schuttoff e Azevedo Advogados: Ana Luisa Castro Cunha Derenusson 38

Senior Editor Suzie Levy Sub Editor Nicholas Catlin Group Consulting Editor Alan Falach Group Publisher Richard Firth Published by Global Legal Group Ltd. 59 Tanner Street London SE1 3PL, UK Tel: +44 20 7367 0720 Fax: +44 20 7407 5255 Email: [email protected] URL: www.glgroup.co.uk GLG Cover Design F&F Studio Design GLG Cover Image Source iStockphoto Printed by Ashford Colour Press Ltd February 2015 Copyright © 2015 Global Legal Group Ltd. All rights reserved No photocopying ISBN 978-1-910083-32-1 ISSN 2050-9839 Strategic Partners

10 Canada

Alexander Holburn Beaudin + Lang LLP: Darryl G. Pankratz & Michael Dery 45

11 Denmark

Kromann Reumert: Jakob Bernhoft & Julie Bak-Larsen

52

12 France

Cabinet BOPS – SCP Bouckaert Ormen Passemard: Aurélia Cadain

59

13 Germany

Arnecke Siebold Rechtsanwälte Partnerschaftsgesellschaft: Holger Bürskens & Ulrich Steppler 65

14 Greece

Bahas, Gramatidis & Partners: Betty Smyrniou

15 Indonesia

Ali Budiardjo, Nugroho, Reksodiputro: Theodoor Bakker & Emir Nurmansyah 80

16 Italy

Studio Pierallini: Laura Pierallini & Francesco Grassetti

87

17 Kyrgyzstan

Arte Law Firm: Aisulu Chubarova & Liliia Kim

95

18 Malta

Dingli & Dingli Law Firm: Dr. Tonio Grech

101

19 Mexico

Chacón & Rodríguez, S.C.: Samuel Chacón & Kaynicté Pérez De Gante

107

20 Poland

MMMLegal - Legal Counsels: Krystyna Marut & Anna Burchacińska-Mańko 114

21 Portugal

NDR – Neville de Rougemont & Associates: Geoffrey Graham & Vicky Rodrigues 121

22 Slovenia

Rojs, Peljhan, Prelesnik & Partners: Alexander Uroš Košenina & Sonja Radošević 127

23 South Africa

Christodoulou & Mavrikis Inc.: Chris Christodoulou

24 Spain

Ventura Garcés & López-Ibor Abogados: Alfonso López-Ibor Aliño & Pablo Stöger Pérez 148

25 Switzerland

VISCHER AG: Urs Haegi & Dr. Thomas Weibel

156

26 Turkey

Ozturk & Partners: Yasar Ozturk

163

27 United Kingdom

Locke Lord Edwards LLP: Alan Meneghetti & Kaye Scholer LLP: Philip Perrotta 169

28 USA

Condon & Forsyth LLP: Bartholomew J. Banino & Nicole M. Smith

73

135

180

Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720 Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations.

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Chapter 20

Poland

Krystyna Marut

MMMLegal - Legal Counsels

1 General 1.1

Please list and briefly describe the principal legislation and regulatory bodies which apply to and/ or regulate aviation in Poland.

Poland, as a European Union (EU) Member State, applies EU regulations. The main piece of national law governing all issues regarding aviation is the Aviation Act (consolidated text Journal of Laws 2013.1393, as amended). There are numerous implementing regulations issued by competent ministers, particularly by the Minister competent for transport. The President of the Civil Aviation Authority issues guidelines and instructions. Furthermore, the Polish Civil Code applies to matters of a civil nature not regulated in the Aviation Law, and the Polish Administrative Procedure Code applies to proceedings before the Civil Aviation Authority. The main regulatory bodies are the Minister competent for transport and the President of the Civil Aviation Authority (CAA). Both bodies constitute air authorities in the fields of European and international aviation. In practice, the President of the CAA would be addressed in all civil aviation issues. 1.2

What are the steps which air carriers need to take in order to obtain an operating licence?

To obtain an operating licence, an air carrier should in particular: 1.

comply with the requirements provided by EU Regulation of the European Parliament and of the Council No 1008/2008, including: a. obtain an Air Operator Certificate from the President of the CAA; and b. possess insurance required by law; and

2.

file an application to the President of the CAA, together with the documents required by the Aviation Act and the implementing Regulation of the Minister of Infrastructure (Journal of Laws 2002.219.1840).

The motion for certification should be filed with the President of the CAA at least 90 days before the planned start of operations and, in the case of certificate extension, at least 30 days before the end of the certificate’s validity. The proceedings concerning the operating licence can last up to 3 months after all documents required by law are delivered.

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Anna Burchacińska-Mańko

1.3

What are the principal pieces of legislation in Poland which govern air safety, and who administers air safety?

In Poland, EU legislation regarding air safety applies. In addition, air safety is regulated by the Aviation Act and the implementing regulations. The most important of these are related to the safety of aircraft and airport exploitation, construction requirements, certification, airworthiness, air accidents and ASAR. Airport authorities must have a Safety Management System manual. The European Aviation Safety Programme and Plan have not been implemented yet. The relevant legislative works on the State Safety Programme have commenced. In the scope not restricted to European Air Safety Agency, air safety is primarily administered and supervised by the President of the CAA and the Minister competent for transport. 1.4

Is air safety regulated separately for commercial, cargo and private carriers?

No, it is not. 1.5

Are air charters regulated separately to commercial, cargo and private carriers?

In general, no. However, there are some differences relating to: ■

requirements for obtaining carriage permission; and

■

the amount of air charges.

There is also a specific regulation regarding air carriage in package tour holiday and charter flights, which mainly focuses on charter agreements. 1.6

As regards international air carriers operating in Poland, are there any particular limitations to be aware of, in particular when compared with 'domestic' or local operators? By way of example only, restrictions and taxes which apply to international but not domestic carriers.

In general, there are no significant distinctions between operations of domestic and international carriers. The major difference is that regarding the supervision by the President of the CAA in the case

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of domestic carriers. The Aviation Act, however, distinguishes between the carriers established within the EU, Switzerland and European Free Trade Association (EFTA) and European Economic Area (EEA) Member States, and those established in a third country, especially regarding carriage permission. 1.7

Are airports state or privately owned?

Poland 3)

the person signing the certificate of airworthiness and documents related to inspections of the aircraft;

4)

a provider of air navigation services;

5)

the airport authority;

6)

the ground handler; and/or

7)

a person exercising a function connected with the installation, modification, maintenance, repair, overhaul, flight-checking or inspection of air navigation installations, the safety of which the air supervision authorities are responsible.

Airports in Poland can be state-owned and privately owned. The major public airports are: ■

Warsaw Chopin (WAW, EPWA) – operated and owned by the Polish Airports State Enterprise;

■

Kraków-Balice (KRK, EPKK) – operated by Międzynarodowy Port Lotniczy im. Jana Pawła II Kraków-Balice Sp. z o.o., owned by Polish Airports State Enterprise, Małopolskie Voivodship and several municipal self-government units;

■

Katowice-Pyrzowice Airport (KTW, EPKT) – operated by Górnośląskie Towarzystwo Lotnicze S.A. w Katowicach, owned by Węglokoks SA, Śląskie Voivodship, Polish Airports State Enterprise, ATENDE S.A. (ATM Systemy Informatyczne S.A.) and several municipal self-government units;

■

Gdańsk im. Lecha Wałęsy (GDN, EPGD) – operated by Port Lotniczy Gdańsk Sp. z o.o., owned by Pomorskie Voivodship, Polish Airports State Enterprise, and several municipal selfgovernment units;

■

Modlin (WMI, EPMO) – operated by Mazowiecki Port Lotniczy Warszawa-Modlin Sp. z o.o., owned by Polish Airports State Enterprise, Mazovia Voivodship, Military Property Agency and the City of Nowy Dwór Mazowiecki;

■

Wrocław-Strachowice (WRO, EPWR) – operated by Port Lotniczy Wrocław S.A., owned by Polish Airports State Enterprise, the City of Wrocław, Dolnośląskie Voivodship; and

■

Poznań-Ławica (POZ, EPPO) – operated by Port Lotniczy Poznań-Ławica Sp. z o.o., owned by Polish Airports State Enterprise, the City of Poznań and Wielkopolskie Voivodship.

1.8

Do the airports impose requirements on carriers flying to and from the airports in Poland?

No, they do not. 1.9

What legislative and/or regulatory regime applies to air accidents? For example, are there any particular rules, regulations, systems and procedures in place which need to be adhered to?

The Aviation Act contains the rules applicable to air accidents and air incidents compatible with international rules, including the Chicago Convention and EU regulations (e.g. Regulation of the European Parliament and of the Council No 996/2010). Aviation accidents and incidents are dealt with by the State Commission for Aircraft Accident Investigation, which is an independent body established by the Minister competent for transport. The Commission investigates the circumstances and causes of accidents and incidents; it does not make judgments regarding guilt and liability. The following entities are required to notify the Commission of an interruption in operation, a defect, damage to aircraft or components, or other circumstances that would or could affect the safety of a flight:

Poland

MMMLegal - Legal Counsels

1.10 Have there been any recent cases of note in Poland involving air operators and/or airports?

The Supreme Court in Poland ruled that compensation under Regulation No 261/2004 can be sought both in the CAA (the Commission on Passengers’ Rights) and in civil courts, even simultaneously. The issue of the limitation period for passengers’ claims under Regulation No 261/2004 has also been submitted to the Supreme Court for resolution. The Supreme Court refused to answer the question on formal grounds and the matter is still causing controversies.

2 Aircraft Trading, Finance and Leasing 2.1

Does registration of ownership in the aircraft register constitute proof of ownership?

Yes, it does. The aircraft register is an owner-type register, which means that the ownership is reflected in the registry documents. The registration certificate constitutes proof of ownership unless and until proved otherwise. However, in order to register the aircraft in the Polish aircraft register, proof of ownership (e.g. a bill of sale) must be lodged. 2.2

Is there a register of aircraft mortgages and charges? Broadly speaking, what are the rules around the operation of this register?

There is no specific register for aircraft mortgages and charges. The mortgages over aircraft can be registered in a general mortgages register. Such registers are kept by 11 courts in Poland. The registers, together with the documents lodged in the register, are open and can be reviewed by anyone. However, it is impossible to view the register electronically (via the internet) at the present time. The mortgages are listed in the registers by one of the 11 courts, depending on the seat of the mortgager, following a short court proceeding. The mortgages over aircrafts are reflected in the Polish aircraft register. 2.3

Are there any particular regulatory requirements which a lessor or a financier need to be aware of as regards aircraft operation?

The Polish aircraft register is an owner-type register. Any records (including deregistration of aircraft) can be made upon an owner’s motion or by an attorney appointed by the owner.

1)

the operator or commander of the aircraft;

Any self-help remedies are not permitted under Polish law – for more details please refer to question 3.2.

2)

the entrepreneur engaged in the design, manufacture, maintenance or modification of the aircraft;

Certain limitations of the bankruptcy law need to be considered as well:

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MMMLegal - Legal Counsels ■

it is presumed that items (e.g. aircraft) in a bankrupt’s possession, at the date of declaration of bankruptcy, are the assets of the bankrupt; exemption from the bankruptcy estate requires a motion/action to court; and

■

contractual provisions defining declaration of bankruptcy as an Event of Default entitling the other party to immediate termination/change of a contract are not permitted.

Poland ■

it is problematic under Polish law whether an aircraft can be detained by Eurocontrol for non-payment of navigation charges; and

■

in some emergency cases, including natural disasters, a possessor of an aircraft may be required to render it for military purposes (actions concerning the security or defence capability of Poland) – adequate compensation is available in the case of such requisition.

As regards situations where aircraft could be subject to temporary retention/detention/seizure, please refer to question 3.1.

The Rome Convention of 1933 is also applicable.

In certain circumstances, an aircraft owner may also be held liable for unpaid airport charges.

3.2

In case an owner or financier retains a right to decide on the issues of a flight’s performance, he may be held liable for damages caused by the aircraft to third parties on the surface. 2.4

Is Poland a signatory to the main international Conventions (Montreal, Geneva and Cape Town)?

Poland is a signatory to the Montreal Convention. It is not a signatory to the Geneva Convention. In the case of the Cape Town Convention, Poland is not a signatory. However, the Cape Town Convention applies in the scope where the EU has exclusive competence such as: choice of law; recognition of judgments; and insolvency, etc. 2.5

How are the Conventions applied in Poland?

Conventions, being international agreements, constitute a source of law in Poland if they are ratified upon a previous statutory consent and published in the Journal of Laws. Once ratified and published, conventions overrule domestic law and are applied directly. The Warsaw and Montreal Conventions have been ratified and published and are therefore binding sources of law in Poland. They should be applied by natural and legal persons as well as state or administrative organs and courts. EU Regulation of the European Parliament and of the Council No 889/2002, adopting the provisions of the Montreal Convention within the EU, is also applicable.

3 Litigation and Dispute Resolution 3.1

What rights of detention are available in relation to aircraft and unpaid debts?

An aircraft may be subject to temporary detention/retention/seizure, inter alia: ■

aircraft may be detained by the President of the CAA in case of breach of safety regulations;

■

aircraft may be detained by airport authority for securing claims for airport charges or damages caused at the airport;

■

aircraft may be retained by a person obliged to hand it over until such person’s claims for reimbursement of outlays, and for remedy of damages caused by the aircraft, are satisfied or secured. This, however, does not apply if the obligation to hand over the aircraft results from tort or when the aircraft to be returned has been rented, leased or lent for use;

■

■

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aircraft may be retained by a lessee, in case the lease is rescinded, to secure claims for monies payable by the lessor (e.g. the return of a security deposit); aircraft may be seized upon a court decision (e.g. in an interim order procedure) or by a court bailiff in enforcement proceedings;

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Is there a regime of self-help available to a lessor or a financier of aircraft if it needs to reacquire possession of the aircraft or enforce any of its rights under the lease/finance agreement?

There are no self-help remedies available to lessors or financiers to reacquire possession of an aircraft. Polish law protects the rights of the possessor (e.g. lessee). The lessee may revert to necessary defence in order to repeal a lawless infringement of his possession and, if threatened by a danger of irreparable damage, may, immediately after having been deprived of possession, revert to necessary “self-help” regimes in order to restore the previous state. The lessee may also file a claim to court requesting the restoration of his possession and withholding from infringements. In case of involuntary repossession, a court order with an enforcement clause is required for aircraft repossession. Such order can be obtained in a regular court suit, which is a rather lengthy process. Previous submission of the lessee to enforcement regarding return of the aircraft can be used in order to facilitate the process. Such submission to enforcement is done in a notary deed which can be granted with the enforcement clause without lengthy regular proceedings. The enforcement clause is granted upon a motion which should be recognised within three days. 3.3

Which courts are appropriate for aviation disputes? Does this depend on the value of the dispute? For example, is there a distinction in Poland regarding the courts in which civil and criminal cases are brought?

In general, commercial suits (i.e. suits where plaintiffs and defendants carry out a business activity) in Poland should be filed to commercial divisions of courts having territorial competence. Depending on the value of a claim, a suit shall be directed to: ■

the district court – where the value of the claim does not exceed PLN 75,000 (approximately EUR 19,000); and

■

the regional court – where the value of claim is higher.

Criminal cases can, in general, be instituted by public prosecutors. Criminal cases are decided by criminal divisions of courts having territorial competence. 3.4

What type of remedies are available from the courts or arbitral tribunals in Poland, both on an i) interim and a ii) final basis?

Civil judgments are rendered upon a suit or motion. In general, it is necessary to file the following with the court: ■

the claim, containing legal justification;

■

evidence; and

■

evidence of the court fee payment.

In some cases (e.g. money claims), simplified, summary or order procedures are available.

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MMMLegal - Legal Counsels

A valid and absolute court judgment needs to be granted an enforcement clause in order to be enforced by the Court Bailiff. Usually the court proceedings in Poland are lengthy. The order procedures for money claims tend to be the shortest, as there are no hearings prior to issuing the order. However, in the case that a defendant files an objection, the regular proceedings would commence. 3.5

Are there any rights of appeal to the courts from the decision of a court or arbitral tribunal, and, if so, in what circumstances do these rights arise?

Polish court proceedings are conducted in two instances. Judgments and some decisions of the first instance court can be appealed against to the second instance court. In addition, in certain cases, a cassation claim to the Supreme Court is available. Pursuant to the Polish Civil Procedure Code, foreign judgments are recognised and enforced by Polish courts following an application. The court would dismiss such application if, for instance: (i) the judgment is not absolute and enforceable; or (ii) recognition or enforcement would be manifestly contrary to public policy in Poland. Poland, as a Member State of the EU, applies Council Regulation No 44/2000, and is also a party to the Lugano Convention. Generally, arbitration awards are final. In order to be enforced, they are subject to recognition or certification of enforcement by a Polish court. Awards of Polish arbitration tribunals can be reversed by a Polish court on the complaint lodged by a party to the arbitration proceedings. The New York and Geneva arbitration conventions would also apply to such proceedings.

4 Commercial and Regulatory 4.1

How does Poland approach and regulate joint ventures between airline competitors?

The primary source of legislation is the Act on Protection of Competition and Consumers (Journal of Laws 2007.50.331). Poland also applies EU Council Regulation No 1/2003. These legal acts are applied in parallel. Under the Act, any agreements which aim at or result in the elimination, limitation or other infringement of competition on a relevant market are prohibited (i.e. anti-competition agreements). Similarly, any abuse of a dominant position in the relevant market is prohibited. In cases where the practices may affect trade between Member States, Polish authorities must also apply Articles 101 (ex 81) and 102 (ex 82) of the Treaty. The President of the Competition and Consumer Protection Office is a competent authority and can issue a decision ascertaining that certain practices restrict competition and ordering them to be stopped. On the basis of Council Regulation No 1/2003, the European Commission also exercises significant powers. Polish law allows agreements, decisions and such other practices regarding air carriage freedoms as are provided in international agreements, as a condition for those freedoms.

4.2

How do the competition authorities in Poland determine the "relevant market" for the purposes of mergers and acquisitions?

Under the Act on Protection of Competition and Consumers, in determining the relevant market, two criteria are applied: assortment market – the market of goods which, with regard to their destination, price and features, including quality, are considered as substitutes by the purchasers; and geographical market, which is offered in an area, where, due to its type and features, barriers in accessing the market, consumers’ preferences, significant price differences and transport costs, a similar competition environment exists.

Poland

Interim measures are available in order to secure the plaintiff’s claims. The plaintiff should specify a manner of securing the claim (e.g. arrest of accounts, or seizure of movables). The final decision with regard to security is made by the court. Under Polish law, no interim order can lead to the satisfaction of the claim. The security cannot overburden the defendant.

Poland

Each case is examined individually by the President of the Competition and Consumers Protection Office on the basis of gathered evidence. The “relevant markets” have a dynamic character – the decision of the President of the Competition and Consumers Protection Office defining the “relevant market” in one case cannot be treated as a precedent for future proceedings; it may merely be treated as a guideline. There is not much Polish case law regarding mergers and acquisitions within the aviation industry. 4.3

Does Poland have a notification system whereby parties to an agreement can obtain regulatory clearance/anti-trust immunity from regulatory agencies?

The Polish Act on Protection of Competition and Consumers does not envisage such a possibility. The control of the President of the Polish Competition and Consumer Protection Office is exercised ex post. The European Union Regulations, including Council Regulation No 1/2003 and Council Regulation No 487/2009, may be applicable. 4.4

How does Poland approach mergers, acquisition mergers and full function joint ventures?

The Polish Act on Protection of Competition and Consumers imposes an obligation to notify an intended concentration, i.e.: 1)

the merger of two or more independent undertakings;

2)

the acquisition – through the purchase of securities, shares or by any other means, of direct or indirect control – of one or more undertakings by one or more undertakings;

3)

the establishment of a joint undertaking by the undertakings; or

4)

the acquisition of assets, provided the minimum turnover threshold (calculated in respect of the territory of Poland or worldwide) is exceeded.

Poland, as a Member State of the European Union, also applies Council Regulation (EC) No 139/2004. If the turnover thresholds envisaged by this Regulation are met (Community-wide and worldwide), notification must be made to the European Commission (i.e., for concentrations with a Community dimension). There are no general national limitations on foreign ownership in Poland. However, such limitations may be applicable in specified situations/sectors of economy, e.g. in the case of a public airport’s owner or authority, where the Minister competent for transport can prohibit the acquisition of shares. For airlines the requirements of Regulation (EC) of the European Parliament and Council No 1008/2008 shall apply.

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MMMLegal - Legal Counsels

Poland

4.5

Please give an outline of the procedure, including time frames for clearance and details of any costs of notifications.

■

access and correct data; and

■

request to stay the processing of data or to remove data.

Personal data files must be registered in a public register maintained by the General Inspector for Personal Data Protection.

The relevant authority to issue concentration clearance is the President of the Polish Competition and Consumer Protection Office. The procedure is instituted upon a motion. The fee is PLN 5,000 (approximately EUR 1,250). In theory, the procedure shall be finalised and a decision issued within two months. In practice, the procedure takes longer.

Data processing by computerised reservation systems (CRSs) is also regulated by specific law provisions from European Parliament and Council Regulation No 80/2009. Information concerning identifiable individual bookings shall be stored offline within 72 hours of the completion of the last element in the individual booking, and destroyed within three years.

A decision of the President of the Polish Competition and Consumer Protection Office refusing clearance can be appealed against to the competition and consumer protection court within two weeks of delivery.

4.9

4.6 Are there any sector-specific rules which govern the aviation sector in relation to financial support for air operators and airports, including (without limitation) state aid?

The administrators, who intentionally or unintentionally breach the duty to protect data from being taken by an unauthorised person, damaged, or destroyed, can be subject to a fine, restriction of freedom or imprisonment of up to one year.

The aviation act allows financial support for airlines and airports or other undertakings in the field of aviation safety, i.e. the purchase of equipment necessary to ensure safety in aviation. Airport developments can also be subsidised. There is also a possibility to impose a public service obligation on airports and airlines. The airports’ support to airlines is governed by the EU rules (principally, the so-called “Charleroi decision”, as well as the Community guidelines regarding state aid as of 2005). 4.7

Are state subsidies available in respect of particular routes? What criteria apply to obtaining these subsidies?

Public service obligations can be imposed over regular air carriage between two airports in Poland or between an airport in Poland and an airport within the EU, and can be subsidised. The criteria are governed by the EU rules, especially Regulation of the European Parliament and of the Council No 1008/2008. Airport authorities can apply discounts on particular routes, in compliance with European rules. 4.8

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Poland

What are the main regulatory instruments governing the acquisition, retention and use of passenger data, and what rights do passengers have in respect of their data which is held by airlines?

In the event of a data loss by a carrier, what obligations are there on the airline which has lost the data and are there any applicable sanctions?

The passengers whose data was lost can also institute civil claims for compensation against the administrators. 4.10 What are the mechanisms available for the protection of intellectual property (e.g. trademarks) and other assets and data of a proprietary nature?

The patents for inventions and protective rights for trademarks are covered by the provisions of the Industrial Property Law (consolidated text Journal of Laws 2013.1410). Patents are granted for inventions which are new, inventive and have an industrial application. In order to receive patent protection, an invention shall be notified to the Patent Office. The holder of a patent has a right to exclusive commercial or professional use of the invention within the territory of Poland. The duration of a patent is 20 years. A trademark is a graphical identification allowing for the distinction between products. In order to receive a protective right, a trademark shall be notified to the Patent Office. The holder of a registered trademark has a right to exclusive commercial or professional use of the trademark within the territory of Poland. The duration of a protective right is 10 years, but this can be prolonged. The Polish Patent Office carries out proceedings regarding the protection of international trademarks in the scope envisaged by the Madrid Agreement (1891) and Protocol (1989) concerning the International Registration of Marks.

The Act on Personal Data Protection (consolidated text Journal of Laws 2014.1182) is a primary regulation in this respect. It specifies in detail the requirements for personal data processing which must be met by data administrators (e.g. airlines), and defines situations where personal data processing is permitted, which include, inter alia, processing upon consent or in performance of the agreement.

In the course of the proceedings before the Patent Office, the applicant can be represented exclusively by a patent agent (rzecznik patentowy). Final decisions of the Patent Office can be appealed against to administrative courts.

The passengers are, inter alia, entitled to:

4.11 Is there any legislation governing the denial of boarding rights?

■

receive information on the data files and the administrator (name and address);

■

receive information on the purpose (including anticipated recipients), scope and method of data processing;

■

receive information on the data content and the date when processing was started;

■

receive information on whether giving personal data is obligatory or voluntary (if obligatory, the legal basis must be stated);

■

receive information on the source of data;

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Creative works are also protected by the Copyright Act.

The Aviation Act, for matters connected with the denial of boarding rights, refers to EU Regulation of the European Parliament and of the Council No 261/2004. Passengers to whom boarding is denied have a right to reimbursement of the cost of the ticket and the re-routing. Passengers to whom boarding is denied against their will are also entitled to: 1.

lump-sum compensation; and

2.

care (e.g. meals and refreshments, hotel accommodation).

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Following the last Supreme Court verdict, passengers can also file claims for compensation under Regulation No 261/2004 to the civil courts (bypassing the CAA). This impairs business as the claims are sometimes filed to the CAA, sometimes to civil courts and sometimes to both. It should be noted that the courts are not obliged to honour the CAA verdict, also with regard to qualification of extraordinary circumstances. The airlines incur the significant financial and organisational burdens of this situation. There is a legal dispute about whether passenger claims are subject to an expiry period or not and if so, what the expiry period is. The CAA imposes fines on air carriers for breach of the Resolution. The fines amount to between PLN 200 and PLN 4,800. As the fines are imposed separately for the breach of each duty (e.g. duty to pay compensation, duty to provide care) and separately in respect of each individual passenger, their cumulated amount can be very significant. 4.12 What powers do the relevant authorities have in relation to the late arrival and departure of flights?

general, the airport authority is responsible for assuring safe air operations for the airport, including in the required scope of airport infrastructure, the fire brigade, medical protection, safety and security, and environmental requirements (including noise restrictions). The Aviation Act also regulates constitutional requirements regarding the airports, both in relation to establishing the airport and to operating the airport. The requirements depend on the airport’s type, i.e. whether it is an exclusive usage airport (open to those registered in the airport register) or a public airport (open to all air operators within the airport limits, relevant for commercial flights). In general, state, municipal or private undertakings, with their seat/ domicile in Poland or another EU country or the Swiss Confederation or a Member State of the EFTA (a signatory of the EEA agreement), can establish and manage public airports in Poland. However, some foreign ownership limitations in the case of airport owners and airport authorities apply. The Minister competent for transport has some important powers regarding the acquisition of shares in a public airport authority, as well as the undertaking establishing or owning such an airport. The same applies to disposing of an asset which is important for the functioning of the airport. Actions taken against the ministerial decisions are void. The next limitation concerns the ownership of real estate of international airports with a constant state border. Such a piece of land can be owned only by the State Treasury or other state units, municipal units or commercial companies where such undertakings own at least 51% of shares. In order to commence operating the airport, an entity has to obtain:

Similar to denied boarding rights, cancellation and long delays are regulated by the Regulation of the European Parliament and of the Council No 261/2004. The practice is also significantly influenced by the verdicts of the European Court of Justice, which have largely extended the Regulation’s applicability.

1.

a certificate confirming the safe operation of the airport, mainly in accordance with Annex 14 to the Chicago Convention and Regulation of the European Parliament and of the Council No 216/2008 WE, granted by the President of the CAA;

2.

an operating permit granted by the President of the CAA;

The Regulation provides for a number of entitlements to passengers whose flights were delayed or cancelled, for example:

3.

an airport charges scheme, consulted on with airport users and approved (or non-contested) by the President of the CAA; and

4.

operational contracts with providers of air traffic control services, ground handlers and border guard services.

1.

reimbursement of ticket cost and re-routing;

2.

care (e.g. meals and refreshments, hotel accommodation); and

3.

lump-sum compensation (whereas the Regulation provided for a right to compensation only to passengers of cancelled flights, the Court of Justice of the European Union (ECJ) ruled that passengers of flights delayed by more than three hours in arriving at their final destination shall be entitled to compensation on the same terms and conditions as passengers of cancelled flights).

Claims by passengers are individually decided by the CAA (Commission on Passengers’ Rights) or by the civil courts – for more detail, please refer to question 4.11 above. Fines are also applicable – please refer to question 4.11. The CAA applies a pro-consumer approach in interpreting the “extraordinary circumstances” which could exempt a carrier from the obligation to pay lump-sum compensation. Recently, the CAA has started to refer to the National Enforcement Bodies’ so-called NEB list of extraordinary circumstances and has moderated its approach, particularly in respect of technical failures.

The application for the certificate should be lodged no less than 90 days before the planned commencement of operations. The procedure to obtain a permit to operate the airport should last no longer than 30 days, but this term can be prolonged by the CAA. The procedure to consult airport users about airport charges should last at least 30 days and the scheme should be presented to the President of the CAA 40 days in advance. Following the entering into force of Regulation No 139/2014, airports have to prepare for certification in terms of their organisation and functioning, under the rules established by the European Air Safety Agency (EASA). Under the new rules, certification has to be completed by all airports by the end of 2017. 4.14 To what extent does general consumer protection legislation apply to the relationship between the airport operator and the passenger?

Passengers of delayed flights may also request compensation under the Montreal Convention.

Provisions of general legislation regarding consumer protection are applicable.

4.13 Are the airport authorities governed by particular legislation? If so, what obligations, broadly speaking, are imposed on the airport authorities?

4.15 What global distribution suppliers (GDS) operate in Poland?

Airport authorities are governed by the Aviation Act and by implementing regulations issued by the competent minister. In

Poland

The claims of passengers are individually decided by the CAA (Commission on Passengers’ Rights). In order to file a complaint to the CAA, a passenger must first file a claim to the airline. The CAA issues first- and second- (upon motion for reconsideration) instance decisions. The final decisions of the CAA can be further appealed against to the administrative courts, which again can issue verdicts in first and second (upon appeal) instance.

Poland

The major GDSs operating in Poland are: ■

Amadeus (Amadeus Polska Sp. z o.o.);

■

Sabre (Sabre Polska Sp. z o.o.);

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Galileo and Worldspan (operated by Travelport);

■

IBE; and

■

Navitaire.

Poland

4.16 Are there any ownership requirements pertaining to GDSs operating in Poland?

Under the Polish Aviation Act, CRSs shall be used in such a manner that: ■

they meet the requirements of transparency, equality and fair competition among the carriers and CRS operators; and

■

they ensure the widest choice to users.

Entities enjoying access to a CRS are bound to protect personal data and cannot process such data without a user’s consent. CRS activities are supervised by the President of the CAA. EU Regulation of the European Parliament and of the Council No 80/2009 also applies. Under the Regulation, every CRS operator shall, every four years and, in addition, upon request from the Commission, submit an independently audited report detailing the ownership structure and governance model.

Poland 4.17 Is vertical integration permitted between air operators and airports (and, if so, under what conditions)?

Generally, under the Polish Aviation Act a public airport operator may not conduct air carriage activities. The purchase of shares in an entity owning and/or managing an airport falls under the supervision of the Minister competent for transport, and may require notification to the Minister under pain of nullity (for details please refer to question 4.13). Regarding vertical integration and/or cooperation, general provisions of competition and consumer protection law shall apply, for example vertical agreements impairing competition are prohibited. However, vertical agreements may be admitted provided they meet criteria detailed in the Regulation of the Council of Ministers on exclusion of certain types of vertical agreements from the prohibition of agreements limiting competition. Council Regulation No 487/2009 shall also apply.

Acknowledgment The authors would like to acknowledge the equal contribution of their colleague Edyta Michalak in the preparation of this chapter.

Krystyna Marut

Anna Burchacińska-Mańko

MMMLegal - Legal Counsels ul. Zimowa 27 B lok. 31 05-500 Nowa Iwiczna Poland

MMMLegal - Legal Counsels ul. Zimowa 27 B lok. 31 05-500 Nowa Iwiczna Poland

Tel: +48 22 713 8212 Email: [email protected] URL: www.mmmlegal.pl

Tel: +48 22 713 8212 Email: [email protected] URL: www.mmmlegal.pl

Krystyna Marut is a legal counsel, and has been practising since 1998. Working for LOT Polish Airlines (including as the Director of the Legal Office) and the Polish Airports State Enterprise, she gained experience in the airline, airport and ground handling business. She was involved in the creation of the airport charges system, as well as the coordination and schedule facilitation concept. She has participated in legislative procedures in respect of aviation law and its amendments. Krystyna has cooperated with international aviation organisations and has represented the Polish Airports State Enterprise on the Airports Council International Policy Committee. She was engaged in air navigation and air traffic management issues. She has also advised carriers in numerous aircraft financing transactions, including lease agreements. She also has extensive expertise in labour law, including crew working time issues, as well as collective labour law issues. Together with Edyta Michalak, Krystyna is an aviation law lecturer at the Academy of National Defence and an author of publications on aviation.

Anna Burchacińska-Mańko is a legal counsel, and has been practising since 1998. Working for a global law firm and LOT Polish Airlines, she gained experience in Polish, EU and international regulations of the aviation and ground handling business. She specialises in air carriers’ liability and regulatory issues. Anna has represented airlines before civil and administrative courts, as well as consumer protection bodies, including the Commission on Passengers' Rights of the Civil Aviation Authority. She has extensive experience in subrogation claims of insurers. She was involved in drafting and applying general terms and conditions of carriage, and has expertise in abusive clause issues. She has extensive legal know-how on contracts applied in aviation businesses, such as charter, handling, agency, as well as in respect of property rights in aircraft. She has also advised on passengers’ data protection issues. Anna is an author of publications and press articles on aviation.

MMMLegal was founded in 2008 by three practising aviation lawyers – Edyta Michalak, Krystyna Marut and Anna BurchacińskaMańko. The idea was to provide highly specialised legal expertise to the business entities acting in the rapidly developing Polish aviation market, including, in particular, airlines and airports. MMMLegal provide clients with a wide range of legal assistance in the domain of aviation, encompassing, inter alia, regulatory, commercial, operational, financing, liability and safety issues. They also offer professional assistance in many legal aspects related to aviation business, such as labour law, data protection regulations, intellectual property, etc. Their expertise covers Polish, EU and international regulations. MMMLegal are also actively engaged in popularising aviation law in Poland through publications and lecturing.

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