Seven years after the EU Denied Boarding Regulation (261/2004) entered into force, the German government published data on the current status of the regulation's implementation and enforcement in Germany (Parliamentary Paper 17/9295).
In response to an inquiry initiated by Alliance 90/The Green Party, the government revealed the latest statistics on the number of administrative fine proceedings and penalty notices imposed by the Federal Aviation Office (LBA). In accordance with Article 16 of the EU regulation, the LBA is Germany's designated national enforcement body and, as such, the competent authority for the implementation of the regulation.
The number of administrative fine proceedings in Germany totalled 5,276 as of 1 March 2012. In 2011 the LBA initiated more proceedings than ever before. Particularly significant is the increase for German air carriers: from 2010 to 2011 the number of fine proceedings more than doubled from 530 to 1,170. For non-European air carriers, the figure rose from 154 in 2010 to 194 in 2011. Only European air carriers noted a slight decrease, from 538 in 2010 to 423 in 2011.
Also, the number of penalty notices has increased drastically. As of March 28 2012 the LBA had issued a total of 288 penalty notices, with fines ranging from €1,000 to €25,000. While in 2009 only three fines were levied, the number rose to 53 in 2010 and more than tripled to 161 in 2011. In addition, the average fine increased from €3,000 to an alarming €10,600 within only six months.
Due to the high workload, the LBA has expanded its staff and has increased its own capacities from 4.5 to 6.75 posts. This reinforcement of staff has already become apparent and it seems that the accumulated backlog of cases is beginning to clear. Forty eight penalty notices were issued in the first quarter of 2012, which indicates a further increase for this year. By contrast, the potential disclosure of airlines' names by the LBA remains unlikely. Although the European Commission has suggested that the names of airlines that infringe passengers' rights be divulged, the German government has rejected this proposal based on data protection issues.
Furthermore, it will be interesting to see whether the plans of the German government to introduce a conciliation procedure for passenger claims will have an impact on administrative fine proceedings. Although the establishment of a conciliation body is still in the drafting phase – the first ministerial draft was recently forwarded to stakeholders for review and comment – the legislation is likely to be in place before the end of the current legislative period.
The prosecution of administrative offences is not part of the ministerial draft on the conciliation procedure. However, under German law, it is within the discretion of the LBA:
- to refrain from administrative fine proceedings during the conciliation process; or
- to end administrative fine proceedings, depending on the outcome of the conciliation process.
Unquestionably, the LBA has tightened its policy. Against this background, air carriers should take the initiation of infringement proceedings seriously. Therefore, it will be of utmost importance to submit a carefully drafted statement to the LBA. Fines can rise rapidly, especially in the event of reoccurrence. It now rests with the LBA to decide how to exercise its discretion in respect to the planned conciliation process. The practical effects of a conciliation procedure on the administrative proceedings remain to be seen.
For further information on this topic please contact Katja Helen Brecke at Arnecke Siebold by telephone (+49 69 97 98 85 0), fax (+49 69 97 98 85 85) or email ([email protected]).