Aviation Law-what's on the horizon in 2013? | In Principle

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Aviation Law-what's on the horizon in 2013?

At least one set of amendments to Poland’s Aviation Law will take off in 2013. It is closely tied to implementation of the Airport Charges Directive (2009/12/EC).

How do airport charges work now?

Under current law, there is a uniform system for establishing and monitoring airport charges. The operator of each airport may collect a fee from the user of an aircraft when it performs services for the user at the airport connected with handling takeoff, landing and stopover of aircraft, arrival and departure of passengers, and carriage of freight.

In the case of public-use airports (i.e. airports open to all aircraft during the hours and under the terms established and published by the operator of the given airport), there is a complex and time-consuming procedure for approval of proposed airport charges, for the most part conducted before the President of the Civil Aviation Authority. The proposal must first receive comment from representatives of air carriers using the airport in question, and then be submitted to the aviation authority for approval at least three months before the effective date of the proposal. If the proposal does not comply with the rules set forth in the Aviation Law or international regulations, the aviation authority may refuse to approve the proposed airport charges or order a modification of the proposal. The approved airport charges must then be published in the Official Journal of the Civil Aviation Authority.

These regulations impose serious burdens on small and medium-sized airports. It is argued that the current regulations create unnecessary, overly formalistic and pointless administrative procedures for entities involved in air transport.

How will it be?

The main goal of the amendment is to modify this system to adapt it to the diversified airport market in Poland by introducing two different categories of public-use airports. The first category is for airports handling over 5 million passengers per year, or if there is no such airport, then the largest airport in the country. In the case of Poland, for now this means only Warsaw Chopin Airport, but within a few years it may also include John Paul II Airport at Kraków-Balice. Essentially the same procedure as now will continue to apply to such airports.

With respect to other airports, there will be a simplified procedure, which generally speaking will relieve the operators of the airports of the burden of having to seek approval of proposed airport charges from the aviation authority.

The operators of both categories of airports will be subject to a procedure for consulting with air carriers regularly operating at each airport. But in the case of the smaller airports, the operator will be required only to notify the aviation authority of the new list of airport charges, after consultation with the air carriers, no later than 40 days before the planned effective date. The President of the Civil Aviation Authority will be entitled to order a modification of the charges only if they violate national or international aviation law.

An interesting solution is introduction of an additional instrument to enforce payment of airport charges by air carriers. Under the current Art. 78(1) of the Aviation Law, an airport operator has the right to seize an aircraft temporarily in order to secure its claim for payment of airport charges owed by the operator of the aircraft or injury caused by the operator at the airport. The amendment introduces a new Art. 78a, under which the operator of a public-use airport will also be able to deny a carrier the use of airport facilities, equipment or services if it is in arrears in payment of its airport charges. This appears to be a worthwhile approach.

The Act of 7 December 2012 amending the Aviation Law in this respect was signed into law by the President of Poland on 8 January 2013 and published on 28 January 2013, and goes into effect on 11 February 2013.

The Airport Charges Directive was supposed to be transposed into the national law of the member states by 15 March 2011. Due to the serious delay in meeting this deadline, the European Commission filed suit against Poland in the European Court of Justice demanding a fine of about EUR 75,000 for each day of delay until the relevant regulations are enacted. Nonetheless, because Poland managed to enact the necessary legislation early in 2013, it may ultimately be able to avoid a fine in this case.

Natalia Rutkowska, Dispute Resolution & Arbitration Practice, Wardyński & Partners