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3. ГРАЖДАНСКОЕ ПРАВО; ПРЕДПРИНИМАТЕЛЬСКОЕ ПРАВО; СЕМЕЙНОЕ ПРАВО; МЕЖДУНАРОДНОЕ ЧАСТНОЕ ПРАВО (СПЕЦИАЛЬНОСТЬ 12.00.03)
ЗАРУБЕЖНЫЕ НАУЧНЫЕ ШКОЛЫ
3.1. RESTRUCTURING OR BANKRUPTCY IN POLAND OF THE EUROPEAN COMMUNITY AIRCRAFT CARRIER
Rafal Adamus, Doctor of Science, professor Place of employment: University of Opole (Poland)
1. [Insolvency of airlines]
Insolvency does not bypass airlines1. The recent insolvency of British Monarch Airline (2017), Austrian Airline Niki (2018) and German Air Berlin (2017) was seriously remarkable. Some airlines, which submitted an insolvency request, nevertheless continued transporting passengers. In Poland, airlines' casus of insolvency is related to, among others, OLT Express Regional.
The aim of this study is presenting a problem of restructuring or bankruptcy in Poland of the European Community aircraft carrier.
2. [Basic sources of legal regulation]
The subject of this study is the issue of the impact of bankruptcy and restructuring regulated by the provisions of Polish law on aviation activities, of so-called a Community carrier within the meaning of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community. This problem is regulated by a number of legal acts. Due to the cross-border nature of aviation activities, (a) the area of international agreements, including binding resolutions of international organizations established on the basis of ratified international agreements, eg the International Civil Aviation Organization (ICAO) annexes to the Convention on International Civil Aviation, drawn up in Chicago, December 7, 1944 (b) the area of the Law of the European Communities, (c) the area of national (Polish) law.
2.1. [International law]
Among many legal acts regulating international air transport one should mention the Convention on International Civil Aviation, drawn up in Chicago on December 7, 1944. Nevertheless, from the point of view of the problem raised in this study, this act has a symbolic dimension.
2.2. [Law of the European Communities]
In the field of secondary legislation of the European Com-
1 Airline Insolvency Review, 12.02.2018,
https://www.gov.uk/government/publications/air-insolvency-review-interim-report; Impact assessment of passenger protection in the event of airline insolvency, 2011, https://ec.europa.eu/transport /sites/transport/files/themes/passengers/studies/doc/2011_03_passen ger-rights-airline-insolvency.pdf; Komunikat Komisji do Parlamentu Europejskiego, Rady, Europejskiego Komitetu Ekonomiczno-Spotecznego i Komitetu Regionow. Ochrona pasazerow w przypadku niewyptacalnosci linii lotniczej /* COM/2013/0129 final */ Commission Communication on passenger protection in the event of airline insolvency, 2013, http://eur-lex.europa.eu/legal-content/EN/ALL/7uri =C0M:2013:0129:FI N ;
munities, aviation activities are subject to the regulation of a number of directives subject to implementation in national legal acts. The key issue for the conditions of performing aviation activities in the European Union is primarily the Regulation of the European Parliament and of the Council (EC) No. 1008/2008 of 24 September 2008 on common rules for the operation of air services in the Community.
2.3. [Polish law]
Among the provisions of Polish law should be mentioned the Act of 28 February 2003 Bankruptcy Law, of 15 May 2015, the Restructuring Law. Next, the provisions of public law: the Act of March 6, 2018. The Law of Entrepreneurs, of July 3, 2002. The Aviation Law.
3. [Hierarchy of legal acts]
According to art. 3 par. 1 The Aviation Law legal provisions in the field of civil aviation shall be governed by the provisions of the Aviation Law, unless ratified international agreements binding in the Republic of Poland provide otherwise. The law of the European Communities has the priority of applying before national (Polish) law2.
4. [Administration of civil aviation in Poland]
At the level of the European Union, no Community administrative structure of civil aviation has been built for the joint certification and licensing of activities. It is the competence of the Member States.
The Minister of Transport (art. 16 par 1 The Aviation Law) is the supreme organ of government administration in Poland competent in civil aviation matters. The central body of government administration competent in civil aviation matters is the President of the Civil Aviation 0ffice, Prezes Urzçdu Lotnictwa Cywilnego, hereinafter called "The President of ULC" (art. 20 par. 1 The Aviation Law). The President of ULC :
organizes the certification procedure
and is a concession authority.
5. [Restructuring proceedings in Poland]
Pursuant to art. 2 The Restructuring Law the debtor's restructuring is carried out in the following four restructuring proceedings:
2 M. Szpunar, Prawo europejskie, edition. 3, Warszawa 2002, p. 25, 30, Ch. Zacker, S. Wernicke, Prawo europejskie w pytaniach i od-powiedziach, Warszawa 2000, p. 86, M. Cuthbert, E.C. Law, London
1994, p. 29. C. Mik, Metodologia implementacji europejskiego prawa wspolnotowego w krajowych porz^dkach prawnych, [in :] C. Mik (editor.) Implementacja prawa integracji europejskiej w krajowych porz^dkach prawnych, Torun 1998, ogtoszenie Prezesa Rady Min-istrow w sprawie stosowania prawa Unii Europejskiej (Monitor Polski 2004, Nr 20, poz. 359).
(1) in the proceedings for the approval of the arrangement,
(2) in the accelerated arrangement proceedings,
(3) in arrangement proceedings,
(4) in the sanation proceedings.
The procedure for the approval of the arrangement makes it possible to conclude the arrangement as a result of the debtor's independent collection of votes by the debtor without the participation of the court.
Accelerated arrangement proceedings allow the debtor to enter into a system after preparing and approving the inventory of receivables in a simplified manner.
The arrangement proceedings enable the debtor to conclude the agreement after preparing and approving the list of receivables.
The sanation proceedings enable the debtor to carry out the rehabilitation activities and conclude the agreement after preparing and approving the list of receivables.
The premise for opening a restructuring proceeding is: (a) insolvency or (b) the threat of insolvency of the debtor (Art. 6 The Restructuring Law). From a theoretical point of view, insolvency and the threat of insolvency are disjointed concepts. A negative premise for the opening of restructuring proceedings has been formulated in art. 8 sec. 1 The Restructuring Law. Pursuant to this provision, the restructuring court refuses to open restructuring proceedings if the proceedings would injure the position of the creditores - in other words, if it would be more advantageous for the majority of creditors to declare the debtor bankrupt, in particular when submitting a competitive application for bankruptcy. It should be remembered that according to art. 9a The Bankruptcy Law it is not possible to declare the debtor bankrupt in the period between the opening of the restructuring proceeding to its completion or final dismissal. With the provision of art. 8 sec. 1 The Restructuring Law is correlated art. 325 sec. 1 point 1 The Restructuring Law according to which the court discontinues the restructuring proceedings if the conduct of the proceedings would be aimed at harming the creditors.
6. [Bankruptcy proceedings in Poland]
Bankruptcy proceedings are collective proceedings conducted in the interest of all creditors, consisting in deducting property from the debtor and transferring it to the trustee's management, who then cash the assets and assigns to the claims determined in the course of the bankruptcy proceedings. The liquidation of the debtor's financial asset - the organizational unit then leads to its legal liquidation
7. [The principle of freedom of economic activity]
Economic activity is a freedom guaranteed by European
treaty law and the Polish Constitution3. The legal system allows, under certain conditions, the possibility of regulat-
3 M. Szydto, Reglamentacja dziatalnosci gospodarczej w krajowych porz^dkach prawnych w swietle swobód traktatowych, Studia Prawni-cze, 2003, no. 2, p. 71, C. Kosikowski, Wolnosc dziatalnosci gospodarczej i jej ograniczenia w praktyce stosowania Konstytucji RP, w: Zasady ustroju spotecznego i gospodarczego w procesie stosowania Konstytucji, pod red. C. Kosikowskiego, Warszawa 2005, p. 47, C. Kosikowski, Problemy reglamentacji dziatalnosci gospodarczej w Polsce, in: Instytucje wspótczesnego prawa administracyjnego, Kra-ków 2001, p. 363., A. Powatowski, Ustawa o swobodzie dziatalnosci gospodarczej. Komentarz, pod red. A. Powatowskiego, Warszawa 2007, p. 21. K. Klecha, Wolnosc dziatalnosci gospodarczej w konstytucji RP, Warszawa 2009, p. 21, A. Cieslinski, Wspólnotowe prawo gospodarcze, Warszawa 2003, p. 188, K. Sobczak, Europejskie prawo przedsi^biorczosci, in: Europejskie prawo gospodarcze w dziatalnosci przedsi^biorstw, K. Sobczak (editor), Warszawa 2002, p. 97., A. Opalski, Europejskie prawo spótek, Warszawa 2010, p. 85, . J. Sienczyto -Chlabicz, E. Bieniek - Koronkiewicz, Podejmowanie i wykonywanie dziatalnosci gospodarczej, Warszawa 2002, p. 138.
ing business activity. However, limitation is always an exception to the general rule. On the level of the general standard, neither the opening of restructuring nor the declaration of bankruptcy, nor even the submission of an application for opening a restructuring proceeding or a petition for bankruptcy is tantamount to a ban on conducting business. However, for some types of activity, it is not the case that restructuring and bankruptcy do not affect the conduct of a particular type of business.
8. [Regulation of economic activity]
The regulation of economic activity is an issue in the field of public commercial law and, in general, includes a set of legal norms limiting or even excluding in some conditions the admissibility of running a business4. In other words, it is about regulating economic activity by the state in relations with individuals and their organizations. According to another approach, the regulation of economic activity means the activity of the state in the area of the economy consisting in restricting the freedom of behavior of entrepreneurs5. As prof. C. Kosikowski argues, "rationing is a specific type of state's activity consisting in applying a set of legal measures of an imperative nature and aimed at creating specific conditions necessary for the proper course of organizing economic relations" . According to another approach, restricting freedom of economic activity should be understood as legal instruments in which the entire freedom of any business entity of any kind is tightened, at any place and time, and in any manner determined by law7. Sources of regulation of economic activity may be national as well as transnational, in particular resulting from the fact of membership Of the Republic of Poland in the European Union.8 The primary (treaty) law of the European Union has an impact on the permissible scope of regulation of economic activities in internal legal orders9.
9. [Special conditions for conducting aviation activities]
Aviation activities are not free but rationed activities. This is due to the special nature of this activity and the need to ensure adequate business standards in order to protect the public interest and protect the recipients of these services.
10. [Financial stability of carriers as a condition for conducting aviation activities]
Some sectors of economic activity (such as energy, mineral extraction, aviation activities) are reserved only for capital-intensive entrepreneurs. One of the requirements of conducting aviation activities is adequate financial stability of the carrier. Pursuant to recital 6 of the preamble to Regulation No 1008/2008 / EC, licensing authorities should carry out regular assessments of the financial situation of air carriers. Therefore, carriers should provide sufficient information about their financial situation. In particular, this applies to the situation in the first two years of operation, as this period is of particular importance for the
4 C. Kosikowski, Prawo publiczne gospodarcze Polski i Unii Europe-jskiej, Warszawa 2010, edition 4, p. 179 i n.
5 T. Kocowski, Reglamentacja dziatalnosci gospodarczej w polskim administracyjnym prawie gospodarczym, Wroctaw 2009, p. 107
6 C. Kosikowski, Prawo publiczne..., p. 179
7 K. Klecha, Wolnosc dziatalnosci gospodarczej w Konstytucji RP, Warszawa 2009, p. 172
8 M. Szydto, Swoboda prowadzenia dziatalnosci gospodarczej i swoboda swiadczenia ustug w prawie Unii Europejskiej, Torun 2005, p. 141
9 M. Szydto, Reglamentacja dziatalnosci gospodarczej w krajowych porz^dkach prawnych w swietle swobód traktatowych, Studia Prawni-cze, 2003, no. 2, p. 71
survival of an air carrier on the market. It was further expressed that in order to avoid distortions of competition resulting from the different application of rules at national level, it is necessary to increase the financial control of all Community air carriers by Member States operating through competent aviation authorities.
11. [Negative consequences of wrong financial situation]
The notion of "restructuring" and "bankruptcy" should be disenchanted. These are primarily procedural states of the insolvent debtor or, in the case of restructuring, also threatened by insolvency. However, the negative consequences are related to the actual situation - the wrong financial situation of the air carrier.
12. [Selected requirements for the conduct of aviation activities]
Regulations minutely regulate issues related to the taking and conducting of aviation activities. Below, attention will be paid to these requirements, which are important from the point of view of restructuring and bankruptcy issues. This applies above all to the requirements relating to the person of the carrier as well as to the aircraft he uses.
12.1. [Registration of activities on general principles]
Running a business requires entry in the relevant register (National Court Register (Krajowy Rejestr Sqdowy) or CEIDG with respect to natural persons). In the case of Polish legal regulations, the entry in the relevant register records the fact of bankruptcy or the restructuring of an entrepreneur entered in the register. The declaration of bankruptcy or the opening of the entrepreneur's restructuring, however, does not constitute grounds for deletion from the general register.
12.2. [Confirmation of the airworthiness of aircraft for flights]
Another formal requirement of air operations is the airworthiness of aircraft for flights. According to art. 45 The Aviation Law it is forbidden to use on the territory of the Republic of Poland an aircraft that does not have a valid airworthiness certificate, permission to perform flights for special category aircraft or other equivalent document or does not meet the conditions specified in the type certificate, supplement type certificate, permit to fly or other equivalent document. The declaration of bankruptcy or the opening of the air carrier's restructuring, however, does not in itself affect the airworthiness certificate, which refers to the technical conditions of the debtor's property.
12.3. [Entry in the register of civil aircraft]
As a rule, only civil aircraft registered in the Polish or foreign register of civil aircraft are allowed to perform flights in the airspace (art. 31 sec. The Aviation Law). Entry in the register of civil aircraft results in legally binding nationality of the aircraft and entails subjecting the aircraft to the mandatory supervision of the aviation authorities of the country of affiliation, to the extent specified in the regulations (art. 32 sec. 1 The Aviation Law). In Poland, the register of civil aircraft is kept by the President of ULC (art. 34 sec. 1 The Aviation Law). The application to the register of civil aircraft should contain, among others, surname or name (business name) and place of permanent residence (registered office) of the owner and other aircraft user; surname or name (business name) and place of permanent residence (registered office) of the person actually in possession of the aircraft on the basis of a user agreement (art. 37 sec. 1, point 1, point 2 The Aviation Law). The announcement of bankruptcy or the opening of the restructuring of an air carrier does not have a direct
impact on the effectiveness of the entry in the register of civil aircraft. However, if the aircraft is owned by the air carrier, it becomes part of the bankruptcy estate upon the declaration of bankruptcy, and becomes the component of the systemic weight and the retention mass as soon as the restructuring is opened. However, if the aircraft is in use of an air carrier based on a rental or leasing agreement (another contract), the announcement of bankruptcy or the opening of the air carrier's restructuring has or may have some impact on these contracts.
12.4. [Compulsory liability insurance]
An air carrier is subject to mandatory insurance. As set out in recital 17 of the preamble to Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators, it is necessary to require air carriers to provide evidence of continued compliance minimum liability insurance requirements as provided for in this Regulation. With regard to Community air carriers and for operators using aircraft registered in the Community, submission of proofs of insurance in one Member State should be sufficient for the other Member States where such insurance is made by a company authorized under the applicable law. In other words, the air carrier should have a document confirming the coverage of a valid civil liability insurance in the field of air transport. This document should be in line with the requirements of Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators as amended by Commission Regulation (EU) No 285 / 2010 of 6 April 2010 and the requirements of art. 11 of Regulation No. 1008/2008; The announcement of bankruptcy and the opening of restructuring may have an impact on insurance contracts in a specific legal system.
12.5. [Air operator's certificate]
According to art. 160 sec, 1 and sec. 3 point 1 letter. a) The Aviation Law certification is subject to conducting business in the field of air transport using aircraft. Air Operator Certificate (AOC) confirms that the entity performing business activity requirements in the field of air transport using: aircraft (§ 4 paragraph 1 of the Regulation of the Minister of Infrastructure and Construction of 7 July 2017 on the certification of aviation activities civilian). Detailed rules on the conditions for issuing, maintaining, amending, limiting, suspending or revoking aircraft operators' certificates are contained in Commission Regulation (EU) No. 965/2012 of 5 October 2012 laying down technical requirements and administrative procedures for air operations in accordance with Regulation European Parliament and Council Regulation (EC) No. 216/2008. Air operator's certificates (AOC) in the field of air transport using airplanes, having so-called the airworthiness certificate is issued on the basis of the provisions of Regulation 965/2012 / EU, however, taking into account the requirements of the Aviation Act and the executive regulation on the certification of civil aviation activities. Pursuant to § 8 sec. 1 of the Regulation of the Minister of Infrastructure and Construction to conduct the aviation operation certification process, the President of the Office shall each time appoint a certifying team. According to art. 162 sec. 1 The Aviation Law The President of the ULC performs periodic and - if necessary - ad hoc control to check whether the certificate holder still meets the requirements set by law to issue and maintain the validity of the certificate. The President of ULC calls the certificate holder to restore the sta-
tus consistent with the law under the pain of suspension of the certificate, if as a result of the findings of the inspection was found so-called. "Level 1 non-compliance" or category 4 of the protection status assessment or the certificate holder did not implement the corrective program, or the certificate holder introduced the changes referred to in art. 61 sec. 1 The Aviation Law. The President of ULC withdraws the certificate if, on the date on which the certificate was suspended, the certificate holder did not remove the infringements being the basis for suspension of the certificate (§ 47 sec. 1 Regulation of the Minister of Infrastructure and Construction). For the same reasons as mentioned above, the President of ULC may limit certain rights resulting from the certificate, if the violations concern the scope of activity that is associated with certain rights (§ 48 Regulation of the Minister of Infrastructure and Construction). Finally, the President of ULC calls the certificate holder to restore the legal requirements under the consequences of revocation of the certificate, if as a result of the findings of the inspection was found "level 1 non-compliance" or category 4 assessment of the state of protection, and further activity threatens the life or health of people or public order. The said "level 1 non-compliance" is a non-compliance constituting a direct threat to the safety of operations in civil aviation and requiring immediate removal of its causes, resulting in immediate suspension of any activities or operations related to it until its permanent removal (§ 49 Regulation of the Minister of Infrastructure and Construction). Granting the concession and maintaining its validity depends on having a valid AOC certificate specifying the activity covered by the concession. Any changes to the AOC certificate of a Community air carrier shall, where applicable, be reflected in the concession (Article 6 of Regulation No 1008/2008 / EC). Where the competent licensing authority suspects that financial problems of a Community air carrier might affect the safety of its operations, it shall immediately inform the competent authority responsible for the AOC certificate (Art 7 sec. 2 in fine of Regulation No 1008/2008 / EC). Importantly, in the event of suspension or revocation of the AOC of a Community air carrier, the competent licensing authority shall immediately suspend or revoke the operating con-cessiom of an air carrier (art. 9 sec. 5 of Regulation No 1008/2008 / EC). The financial status of the air carrier itself is not subject to certification. However, the subject of control in the certification framework may already be the consequences of the air carrier's poor financial status.
12.6. [Operating concession for air transport]
The issue of licensing by concession10 aviation activities is of key importance in the context of the financial problems of the carrier. According to art. 3 sec.1 of Regulation No 1008/2008 / EC 'no undertaking established in the Community shall be allowed to carry passengers by air, mail or cargo for remuneration or on a rent basis unless a relevant license has been granted to it.' The concession system is dispersed: there is no one central Community licensing authority (such as the protection of competition against anti-competitive practices and the control of anti-
10 C. Kosikowski, Publiczne prawo..., p. 186., M. Szydto, Koncepcja koncesji w uj^ciu klasycznym i jej recepcja w prawie polskim, Panstwo i Prawo 2004, no 1, P. Lewandowski, Koncesja na dziatalnosc gospodarcze w zakresie prowadzenia kasyna gry, Przegl^d Ustawodawstwa Gospodarczego 2012, no 1, p. 22, P. Lewandowski, Indywidualna praktyka lekarska jako rodzaj koncesjonowanej dziatalnosci gospodarczej, Przegl^d Ustawodawstwa Gospodarczego 2012, no 9, p. 24., G. Michniewicz, Prawo w dziatalnosci gospodarczej, Warszawa 2012, p. 35 i n.
competitive concentrations where the competent authority is the Commission). The consequence of such a regulation model may be the different practice of concession authorities. In Poland, the concession to undertake and pursue economic activity in the field of air transport is granted by the President of ULC in accordance with the provisions of Regulation No. 1008/2008 / EC and Aviation Law (art. 164 sec. 1 The Aviation Law), under the Code of Administrative Procedure. The concessing authority issues a related and not discretionary concession decision because "an undertaking that meets the requirements is entitled to a concession" (art. 3 sec. 1 of Regulation No. 1008/2008 / EC). The concesing authority does not grant concessions or, importantly, does not maintain its validity if any of the legal requirements for licensed activities are not met (art. 3 sec. 2 of Regulation No 1008/2008 / EC). The concession is valid for an indefinite period of time and remains valid as long as the Community air carrier meets the requirements of Regulation No 1008/2008 / EC, including as to the appropriate level of financial stability. A Community air carrier should be able at any time to demonstrate, at the request of the competent licensing authority, that it meets all the requirements of Regulation No 1008/2008 / EC. (art. 8 sec. 1 of Regulation No 1008/2008 / EC).
12.6.1. [Financial requirements for obtaining a concession]
Regulation 1008/2008 / EC introduces stringent requirements for an air carrier as to the existence of adequate current and future financial potential. The competent concessing authority shall carefully assess whether an undertaking applying for the first time for a concession can demonstrate that:
(a) it may fulfill its existing and potential liabilities, fixed under realistic assumptions, for a period of 24 months from the start of the operation;
(b) and may cover fixed and operational costs incurred in connection with operations carried out in accordance with its economic plan and established on the basis of realistic assumptions, for a period of three months from the start of operations, without taking into account any proceeds of its operations (art. 5 sec. 1 of Regulation 1008/2008 / EC).
In other words, the applicant must show an appropriate capital surplus over the obligations to be met. For the purpose of assessing the financial situation, each applicant shall submit an economic plan for at least the first three years of the operation. The business plan also sets out in detail the financial links of the applicant with any other commercial activity in which the applicant is involved directly or through related companies. The applicant shall also provide all relevant information, in particular the data specified in Annex I, point 1 to Regulation 1008/2008 / EC (art. 5 sec. 2 of Regulation 1008/2008 / EC).
Information on the financial situation to be provided by the applicant for the first time are the following:
1. The most recent internal management report and, when available, the audited financial statements for the previous financial year.
2. A projected balance sheet with a profit and loss account for the next three years.
3. Basis of expected costs and revenues in the form of figures for items such as fuel, tariffs and rates, remuneration, maintenance, depreciation, exchange rate fluctuations, airport charges, navigation fees, ground handling costs, insurance, etc. Traffic forecasts air / revenues.
4. Detailed data on the start-up costs incurred in the period from the submission of the application to the com-
mencement of the operation and an explanation of how it is proposed to finance these costs.
5. Detailed data on existing and anticipated sources of financing.
6. Detailed data on shareholders or shareholders, including citizenship and type of shares / stocks held, and the company's articles of association. If it is part of a group of companies, information on the relationship between them.
7. Forecasted cash flow accounts and liquidity plans in the first three years of operation.
8. Detailed data on the financing of the purchase / leasing of the aircraft, including, in the case of leasing, the terms and conditions of the contract
According to art. 166 sec. 3 point 3 The Aviation Law to the application for concession, the applicant is obliged to attach a statement to the applicant that no application was filed against him for the bankruptcy of the entrepreneur and that he is not in liquidation. The state of bankruptcy should be considered as an obstacle in obtaining a concession. The application for concession should be additionally accompanied by documents confirming the fulfillment of the financial requirements specified in art. 5 of Regulation No. 1008/2008 / EC (art. 166 sec. 3 point 5 The Aviation Law). The President of ULC may oblige the applicant to submit within the prescribed period additional data and documents that may substantiate that he will meet the conditions of business activity that will be specified in the concession or stem from the relevant provisions (art. 166 sec. 4 The Aviation Law). However, the financial requirements for obtaining a concession are not identical to the financial conditions for its subsistence.
12.6.2. [Financial requirements for maintaining the concession]
It should be defended that the financial requirements expected of an air carrier for the smooth maintenance of operating licenses are the following. An air carrier should have, on the date of its financial assessment, the ability to meet existing and potential obligations for a period of 12 months. This conclusion comes first of all from art. 9 sec. 1 of Regulation 1008/2008 / EC. The potential liabilities should be those that are typical, characteristic of the size and type of normal activity of the carrier, whose emergence borders on the reasonable assessment of the case (eg estimated fuel expenses, tariffs and rates, remuneration, maintenance, depreciation, exchange rate fluctuations) , airport charges, navigation fees, ground handling costs, insurance, etc.). The ability to meet obligations is associated with their performance in due time. This is lege non distinguente for private and public law obligations. Concessionaries are therefore required to have an adequate level of financial liquidity. The carrier may be financed from funds obtained from loans or credits.
12.6.3. [Monitoring of the financial condition of the carrier after granting the concession]
The competent concession authority carefully monitors the air carrier's compliance with the requirements of Regulation No. 1008/2008 / EC. In each case, it obligatorily tests compliance with these requirements, including if a potential problem is suspected (art. 8 sec. 1 and 2 of Regulation No. 1008/2008 / EC). According to art. 8 sec. 4 of Regulation 1008/2008 / EC The Community air carrier shall periodically provide the competent concession authority with audited financial statements, not later than six months from the last day of the relevant financial year, unless national law provides otherwise. The competent concession authority may at any time assess the financial
performance of a Community air carrier to which it has granted a concesion by requesting the relevant information. As part of this assessment, the Community air carrier concerned shall update the data referred to in Annex I, point 3 to Regulation 1008/2008 / EC, and submit it to the competent licensing authority upon request (art. 8 sec. 3 of Regulation 1008/2008 / EC) ).
12.6.4. [Suspension and revocation of the concession due to poor financial situation]
The competent concession authority may at any time assess the financial performance of a Community air carrier to which it has granted an operating concession. Based on this assessment, the authority "suspends or withdraws" the license if it is no longer convinced (according to objective criteria) that the Community air carrier can meet existing and potential obligations for a period of 12 months (art. 9 par. 1 sentence 1 Regulation 1008/2008 / EC). The order used by the legislator "suspends or withdraws" is not accidental. The President of ULC should first of all recognize the suspension of the concession and then its withdrawal. According to the official statement of the Civil Aviation Office "Any suspension or withdrawal of a concession held is made within the framework of the procedure provided for in the administrative procedure code. In the event of a premise initiating the discussed proceedings, the carrier is notified in writing of the initiation of proceedings regarding the suspension or revocation of the license held. After collecting the evidence in the case, the carrier will be notified of this fact, as well as a deadline for submitting additional explanations, motions and statements regarding the collected evidence, as well as the demands made. If the conducted procedure confirms that the requirements for obtaining the concession are not met, an administrative decision will be issued regarding the suspension or revocation of the concession." The withdrawal or suspension of the license results in the loss or suspension of the conducting licensed business activity. The procedural provisions of the lex fori determine whether the decision to withdraw or suspend the concession is immediately enforceable.
12.6.5. [Temporary concession]
What is very important from the point of view of the subject analyzed in this opinion, the legal rules leave the way between the maintance of the concession and its loss. The competent concession authority - in the event of suspension of the concession - may, by a separate decision, grant the air carrier a temporary license, for a period not exceeding 12 months, until the financial reorganization of the Community air carrier, provided that three conditions are cumulatively fulfilled. First of all, there is no security risk. This is the broadly understood safety of aviation operations. Poor financial situation of the carrier must not affect the efficiency of the aircraft, proper passenger service, stability of the flight schedule, etc. Secondly, the temporary license reflects, if applicable, any changes to the AOC air carrier's certificate. This obviously applies if there were changes to the AOC certificate. As mentioned earlier, the possession of a valid certificate is the basis for obtaining a concession. Thirdly, there is a real prospect of rebuilding the carrier's financial situation during this period (Article 9 sec 1 sentence 2 of Regulation 1008/2008 / EC). In other words, the broadly understood restructuring of an air carrier should be stabilized over a twelve-month period. What does the real perspective mean? This may be about the real likelihood of a deal with creditors, finding an investor, debt to equity, etc. The legislator - which is very important - allows entities that
restructure, including through existing court procedures, to perform aviation operations. After expiry of the temporary license, the President of ULC should announce the expiry of the decision to suspend the concession.
12.6.6. [Verification of the status of the concession granted in the event of restructuring and declaration of bankruptcy].
What is very important from the point of view of the subject of this study, in accordance with art. 9 sec. 2 of Regulation 1008/2008 / EC whenever there are clear indications of financial problems or in the event of opening insolvency proceedings or similar proceedings against a Community air carrier licensed by the competent licensing authority, the authority shall immediately make a detailed assessment of the financial situation and verify the financial situation on the basis of its results. within three months, the status of concession so that: withdraws the license, suspends the concession, grants temporary license. The competent authority of the national aviation administration issuing the licenses shall inform the Commission of its decisions relating to the status of the concession. According to Polish regulations, if there are clear signs of financial problems of the carrier, referred to in art. 9 sec. 2 of Regulation No. 1008/2008 / EC, or in the event of opening bankruptcy proceedings against an air carrier licensed by the President of ULC, the President of ULC without undue delay makes a detailed assessment of the financial position of the carrier (Article 171b sec. 1 The Aviation Law). Commented provision of art. 171b sec. 1 The Aviation Law should be read in such a way that it also concerns the case of opening restructuring proceedings. The initiation of proceedings by the President of ULC is obligatory.
13. [Impact of submitting an application for restructuring for aviation entrepreneur]
The mere fact of submitting a restructuring application, as a general rule, does not yet trigger verification procedures in relation to an air carrier. However, the concession authority may take appropriate verification actions if there are "clear signs of financial problems" and these may materialize at the stage of applying for restructuring. The concession authority does not have to wait for the restructuring to be opened in order to decide on the operating license of the air carrier. The submission of a restructuring application does not affect insurance contracts, contracts for the use of aircraft. De lege lata, the fact of submitting a restructuring application can not be made public by entering into the relevant register dedicated to insolvent debtors. Poland has not had time to introduce such a regulation yet.
14. [Impact of restructuring on aviation]
Opening of restructuring has a significant impact on the carrier's air operations. Nevertheless, it is less far-reaching than in the case of the failure of an air carrier.
14.1. [Inspection of the concession authority ex officio]
The opening of a restructuring in relation to a Community air carrier with a valid operating concession has the effect of initiating proceedings by the concession authority to promptly carry out a detailed assessment of the financial situation and its verification results within three months of the concession status in that the way that the concession will be revoked, suspended, will be granted an interim license (art. 9 sec. 2 of Regulation 1008/2008 / EC).
14.2. [Impact of the opening of the restructuring on the concession]
The mere opening of the restructuring does not have any effect on the concession decision under the law itself. There is no legal automatism here. It is necessary to con-
duct the appropriate proceedings by the concession authority for a possible revocation of the concession. The standards of the administrative procedure require an in-depth consideration of the case and ensuring the party (concessionaire) active participation in all stages of the proceedings. Restructuring proceedings are opened against an insolvent debtor or threatened by insolvency. The concession authority shall suspend or revoke the license if "it is no longer convinced that the Community air carrier can meet existing and potential obligations for a period of 12 months." Prima facie vector of the opening and restructuring vector is set in opposite directions. Nevertheless, from the regulation of art. 9 sec. 2 of Regulation 1008/2008 / EC, the following conclusions can be drawn.
First of all, the concession authority is not obliged to terminate the proceedings always and in any case with the withdrawal or suspension of the concession and may discontinue the proceedings in this matter. Theoretically, during the concession procedure, an airline may conclude a settlement with creditors and be able to meet existing (i.e., created before the opening of arrangement and non-system proceedings as well as arising after the opening of the proceedings) and potential (which have not yet arisen, but which creation is certain due to the type and scope of activity) of commitments for a period of 12 months. The fulfillment of obligations should take place within the payment dates assigned to them. It is important to demonstrate the existence of sources of financing for these obligations.
Second, art. 9 sec. 2 of Regulation 1008/2008 / EC does not exclude the possibility of restructuring the obligations of an airline by way of an arrangement with the creditors also involving the cancellation of part of the obligations, grace period in their repayment, spreading into installments.
Thirdly, the decision of the concession authority regarding concessions should be proportionate. The principle of proportionality is constructed by three dimensions:
(a) the order of suitability,
(b) the imperative of necessity, and
(c) proportionality sensu stricte.
The imperative of resorting to the "withdrawal" of concessions only when there are indeed important reasons for doing so is due to the order of suitability. In connection with the imperative of necessity, the imperial intervention of the state should display the most moderate form and be limited only to the necessary minimum. Of the many measures at stake with similar effectiveness should be chosen the mildest. The requirement of proportionality sensu stricte is expressed in maintaining a balance between the violation of the rights or freedoms of the individual and the realization of values in favor of introducing limitations. The principle of proportionality has, therefore, not only a significant theoretical but also a practical dimension. It applies, for example, to the method of selecting a measure between, for example, withdrawal and suspension of a concession. The suspension of the concession by the President of ULC in connection with the declaration of the licensee's bankruptcy indicates the facts described in the decision of the Wojewódzki Sqd Administra-cyjny in Warsaw of 15.11.2016 VI SA / Wa 899/161.
14.3. [Management of the debtor's property]
As of the date of the opening of the accelerated arrangement proceedings or arrangement proceedings, the property used to run the enterprise and property belonging to the debtor becomes a settelment mass. As of the date of opening the rehabilitation proceedings, the property used to run the enterprise and property belonging to the
debtor becomes a sanation mass.
14.4. [Impact of restructuring on contracts]
Provisions of the agreement stipulating a request to open a restructuring proceeding or its opening, change or termination of the legal relationship to which the debtor is a party, are invalid. The provision of a contract to which the debtor is a party, preventing or hindering the achievement of the restructuring proceedings, is ineffective in relation to the systemic or sanation mass (principle expressed in articles 247 and 248 in relation to accelerated arrangement proceedings, extended to arrangement and rehabilitation proceedings).
14.5. [Conditions for obtaining an interim concession for an air carrier in restructuring]
Once the restructuring has been opened, the air carrier may have - after the administrative procedure - withdrawn or suspended the concession. However, the air carrier may obtain a temporary license, i.e. conditional, timely admission to continue aviation activities.
14.5.1. [Repair program presented to the President of ULC. The role of the restructuring proposal and preliminary restructuring plan]
According to the official position of the Civil Aviation Office, the air carrier presents the President of the Civil Aviation Office with a corrective program confirming the real prospects of improving the financial position of the carrier during the temporary license period. with the prerequisites for obtaining a temporary license. It should already be pointed out in the application to the restructuring court that there is a real prospect of rebuilding the debtor's financial situation in the period for which the temporary license can be granted. It is necessary to defend the view that the period of 12 months is not a deadline for conducting proceedings and implementing the agreement. It would be too rigorous. However, at the time of granting the provisional license, it should come to the conclusion and, as it seems, valid approval of the arrangement. The repair program presented to the President of ULC should show the ability to perform the arrangement obligations.
14.5.2. [Ability to perform non-settlement obligations]
In connection with the opening of the restructuring, the statutory moratorium on the repayment of debts (with the exception of the proceedings for the approval of the arrangement) extends to liabilities created before the opening of the restructuring. Liabilities arising after this date should be performed by the air carrier on an ongoing basis. What is important is also a condition for opening some types of restructuring proceedings. According to art. 8 sec. 2 The Restructuring Law the court refuses to open the arrangement or remedial proceedings also if the debtor's ability to settle the costs of the proceedings and liabilities arising after its opening have not been probable. The ability to perform non-scheduled obligations on a current basis should be demonstrated in the recovery program submitted to the President of ULC.
14.5.3. [Partial arrangement]
The argument for a temporary concession may be - but not necessarily - an application for a partial arrangement. The restructuring law gives the debtor the opportunity to submit arrangement proposals relating only to certain liabilities whose restructuring has a fundamental impact on the continued functioning of the debtor's enterprise. The essence of the partial agreement is therefore to restructure only some of the arrangement commitments that the debtor has chosen independently. At the same time, as
part of the partial arrangement, it is possible to compulsively cover the system of creditors secured in cash on the debtor's assets, which without the partial layout institutions would be covered by the agreement only with their own consent. Thus, in practice, the partial arrangement is a powerful restructuring tool capable of "blocking" debt collection from material security creditors. Partial system can be accepted and approved only in the proceedings for the approval of the system or in the accelerated arrangement procedure. The common denominator of both types of restructuring proceedings is the requirement (absent in the case of other types of restructuring proceedings) that the sum of disputed claims entitling to vote on the arrangement does not exceed 15% of the sum of claims entitling to vote on the arrangement. An air carrier who applies for a partial arrangement can convey a message that its financial problems have a limited reference system.
14.5.4. [Safety of aviation activity]
Restructuring assumptions should absolutely assume and demonstrate full safety of the air carrier's operations.
15. [Impact of submitting an application for the declaration of bankruptcy for aviation]
The mere fact of filing an application for bankruptcy, as a rule, does not yet trigger verification procedures in relation to an air carrier. However, the concession authority may take appropriate verification steps if there are "clear signs of financial problems" and these may materialize at the application stage. Filing a bankruptcy application does not affect insurance contracts, contracts for the use of aircraft.
16. [Impact of the declaration of bankruptcy on aviation]
The announcement of bankruptcy has a far-reaching effect on aviation activities. It should be remembered that bankruptcy is treated as an obstacle in obtaining a concession.
16.1. [Inspection of the concession authority ex officio].
A declaration of bankruptcy towards a Community air
carrier with a valid operating concession has the effect of initiating proceedings by the concession authority to promptly carry out a detailed assessment of the financial situation and its verification results within three months of the concession status in that the way that the concession will be revoked, suspended, will be granted an interim license (art. 9 sec. 2 of Regulation 1008/2008 / EC).
16.2. [Management of property of the bankrupt]
According to art. 173 The Bankruptcy Law the trustee immediately covers the assets of the bankrupt, manages it, protects it against damage, damage or taking it by outsiders and proceeds to its liquidation. According to art. 174 sec. 1 The Bankruptcy Law if the trustee encounters obstacles from the bankrupt in taking over the assets of the bankrupt, the bankruptcy court shall introduce the trustee into the possession of the bankrupt's assets. The strategic assumption in bankruptcy is to sell the bankrupt company in its entirety.
16.3. [Entry of bankruptcy into registers with the debtor's property]
In accordance with the general principle expressed in art. 175 The Bankruptcy Law. The official receiver takes the necessary steps to disclose the decision on the declaration of bankruptcy in the land and mortgage register and in other books and registers to which the assets of the bankrupt are entered. The official receiver should disclose the state of bankruptcy of an air carrier by requesting an appropriate entry in the register of civil aircraft.
16.4. [Influence of bankruptcy on contracts]
According to the general clause of art. 83 The Bankruptcy Law provisions of the contract stipulating in the event of
submitting an application for declaration of bankruptcy or declaration of bankruptcy, the change or termination of the legal relationship to which the debtor is a party is null and void. In turn, pursuant to art. 84 sec. 1 The Bankruptcy Law the term of the contract, to which the bankrupt party is a party, which prevents or makes it difficult to achieve the purpose of bankruptcy proceedings is ineffective in relation to the bankruptcy estate.
16.5. [Bankruptcy and insurance contracts]
Pursuant to art. 115 sec. 1 The Bankruptcy Law declaration of the insured's bankruptcy does not affect the contract for compulsory property insurance. For property insurance contracts concluded by the bankrupt before the date of declaration of bankruptcy, the provisions of art. 98 and 99 The Bankruptcy Law (Article 115 sec. 2 The Bankruptcy Law).
16.6. [Bankruptcy and rental agreements for aircraft]
Bankruptcy in principle does not affect the existence of a contract for the rental of movable property, under which the bankrupt is a tenant. According to art. 110 sec. 3 The Bankruptcy Law if the subject of the tenancy or lease on the day of the declaration of bankruptcy was already issued to the bankrupt, the administrator may terminate the contract or lease, also when the bankrupt's termination of the contract was not admissible.
17. [Impact of the bankrupt company's sale on aviation activity]
Pursuant to art. 317 sec. 1 The Bankruptcy Law the purchaser of a bankrupt enterprise is subject to all licenses, permits, licenses and concessions that have been given to the bankrupt, unless separate laws provide otherwise. The indicated provision establishes the so-called administrative succession. Since the concession issue for the aviation activity is substantively regulated by the Regulation of the European Parliament and the Council, however, there is a fundamental doubt as to whether the national legislator can modify the content of an act of the European Communities. Selling an enterprise of a bankrupt does not mean that the President of ULC is blocked from eliminating a concession from legal transactions. In the perspective of aviation activities, the concession holder can only be an AOC certified entity, fulfilling the insurance criteria, etc. This means that even if a favorable interpretation of the law is accepted, and if the President of the ULC before selling the bankrupt company failed to withdraw or suspend the license, the air carrier could only be operated by another air carrier.
18. [Prepared liquidation]
Provision of art. 317 para. 1 The Bankruptcy Law also applies - with all doubts described above - in the case of liquidation. According to art. 56a sec. 1 The Bankruptcy Law an application for the declaration of bankruptcy may be accompanied by an application for approval of the terms of sale of the debtor's enterprise or its organized part or assets constituting a significant part of the enterprise. In art. 56 d sec. 1 The Bankruptcy Law it was pointed out that, having regard to the application, the court in the decision on bankruptcy approves the terms of sale, specifying at least the price and the buyer of the property being the subject of the sale.
19. [Bankruptcy and restructuring in the holding structure]
In some cases, the regulated business activity matters, for example, who is a member of the licensee's authorities - the organizational unit or who is the concessionaire's shareholder. The AOC and operating concession is al-
ways granted to a specific legal entity. Loss of a concession, an AOC certificate by a holding company does not have direct, automatic impact on the concession or AOC certificate of another holding company. Loss of a concession by one holding company may mean the need to initiate an inspection by a concession authority in another holding company. It should be remembered that licensing is an exception to the principle of economic freedom, and therefore all limits and regulations require an unambiguous legal basis. There is no admissible non-linguistic interpretation extending the scope of application of the regulatory provisions. The public commercial law - in its modern approach - sets the limits of the state's expansion into the individual's freedom.
19.1. [Cases where changes in the holding structure affect the concession]
The Community air carrier notifies the competent licensing authority: ahead of time (ex ante) of any planned mergers or acquisitions; and ex post within fourteen days - on each change in the ownership of a single block of shares, which constitutes 10% or more of the entire share package or shares of a Community air carrier, its parent company or the ultimate holding company (art. 8 sec. 5 letter b) c) Regulation 1008/2008 / EC). If the competent concession authority considers that the notified changes have a significant impact on the financial situation of a Community air carrier, it must present a revised economic plan containing the changed data and covering at least 12 months from the date of their introduction as well as the data referred to in Annex I point 2. The competent licensing authority shall decide on the revised economic plan as regards the possibility for a Community air carrier to meet its existing and potential obligations during these 12 months. This decision shall be taken no later than three months after all the necessary information has been provided (art. 8 sec. 6 of Regulation 1008/2008 / EC). The competent concession authority shall decide, in relation to Community air carriers to which it has granted concessions, whether the operating license should be submitted again for approval if one or more of the elements change.
19.2. [Problem of good reputation]
According to art. 7 sec. 1 of Regulation 1008/2008 / EC in cases where, for the purposes of awarding a concession, it is required to confirm that persons who are steadily and effectively managing the company's activity have a good reputation or have not declared bankruptcy, the competent licensing authority accepts as sufficient evidence against nationals Member States to produce documentary evidence of compliance with those requirements, issued by the competent authorities in the Member State of origin or in the Member State where the persons concerned have their permanent residence. The competent licensing authority may suspend or withdraw the operating license of a Community air carrier if it no longer meets the requirements for good repute as referred to in art. 8 sec. 7 of Regulation 1008/2008 / EC (art. 9 sec. 6 of Regulation 1008/2008 / EC).
The problem of good repute may arise if
a member of the board of an air carrier - if applicable law permits such a construction - or
b) the actual managing holding company was another company that declared bankruptcy or opened a restructuring.
It is necessary to defend the view that, as a rule, the bankruptcy of the daughter company does not violate the good reputation of the mother company within the holding structure.
20. [Existing aircraft passenger protection provided under Polish and EU law]
Aircraft passenger rights, such as (aa) care, (bb) rerouting and (cc) compensation, under Regulation (EEC) No. 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 are in force from the sale of a ticket and theorethically are unaffected by an aircraft carrier's financial position. In fact the problem of real passenger protection against carrier insolvency seems to remain unsolved under current regulation both European and Polish. There is a very poor ex ante protection. Measures of ex post protection are not satisfactionary from the consumer's point of view. Commission Communication on passenger protection in the event of airline insolvency, 2013, frankly stipulates that "neither the air carriers nor the competent authorities have been able to sufficiently ensure in advance that necessary appropriate arrangements are in place to re-route flight only passengers and assist them in the interim to provide ensure that their other rights are respected (e.g. information, assistance, and reimbursement). Passengers' rights under Regulation (EC) No 261/2004 have not been fulfilled by the failing carrier - in particular rerouting stranded passengers and in providing assistance (such as accommodation). This has meant affected passengers have therefore had to be self-reliant."
Member States of the European Communities use different measures to protect the aircraft passangers such as reserve funds, insurance schemes, bank guarantees, etc. Passengers are in a position to raise claims in ordinairy proceedings which is, as mentioned above, not a satisfactory solution from the consumer's point of view.
20.1. [Insurance against carrier insolvency. Scheduled Airline Failure Insurance] Passengers could be insured -(aa) individually or (bb) in general travel terms - against consequences of the insolvency of the aircraft carrier. In such a case, the effects of the insolvency of the carrier are liquidated by the insurance company. However insurance of this type is not common, not obligatory. It should be stated that "Scheduled Airline Failure Insurance (SAFI) permits flight-only passengers in some [European Community] States (such as the UK and Ireland) to insure against some of the costs of air carrier insolvency. This commercial scheme is available on an individual basis and is also occasionally included in general travel insurance. SAFI covers the cost of rerouting if a passenger is stranded or a refund of the original ticket cost where a passenger cannot recover it. SAFI does not usually cover the cost of purchasing another ticket on an alternative carrier if a passenger has yet to start their journey, or any additional costs incurred as a result of delay or other nonrefundable losses such as car hire. Cover is usually not available to any carrier known to be in financial difficulty and can be withdrawn from the market with little notice"1 . The conclusion is simple : passengers who have failed to obtain insurance to cover some of the costs resulting from the insolvency of an airline on which they are booked have no protection on this level.
[Billing Settlement Plan]
In some cases, against the insolvency of the aircraft carrier, can protect the system of booking tickets. "Payment
11 Commission Communication on passenger protection in the event of airline insolvency, 2013.
for tickets purchased via IATA-accredited travel agents are held within a central payment mechanism, known as the Billing Settlement Plan (BSP), before being passed to the airline (this is usually monthly, but this period can be shorter). If a member airline becomes insolvent, IATA may voluntarily refund passengers whose payments have not yet been passed to the airline. Such protection is limited -only applying to those passengers who booked within the payment period i.e. at most up to 30 days before the flight. Passengers booking via an IATA travel agent further in advance of travel would not obtain a refund as the money is no longer in the BSP system"12. [Refunding from the card provider] It should be mentioned that ticket purchases made by a credit card (debit card) in some circumstances allow consumers13 to claim a refund from the card provider in the event of the service provider's insolvency. In fact, this refund is usually limited to the cost of the original ticket14 and in some cases subject to a minimum amount15. It should be underlined that credit cards only protect passengers in cases where the ticket is purchased directly from the airline, not from an intermediary (such as a travel agent). The protection offered by credit cards is only available where the supplier has failed to provide the services agreed; in the case of a travel agent, when tickets are purchased it agrees to pass funds to the relevant airlines, and even if the airline is no longer solvent the travel agent has completed its services. [Voluntary assistance from other airlines] In case of unexpected insolvency of aircraft carrier it is possible to receive some extraordinary assistance from other responsible airlines who possibly will agree to offer to the passengers so colled "rescue fares" at a nominal charge. "Rescue fare" should be charged to cover basic outgoings such as taxes and the marginal costs of carriage (fuel, etc.)16. [Replacement of air carrier by a travel agency] In case of organized trips (package tour), the air transport is organized by a sub-contractor of a travel agency. In such a case airlines do not sell the ticket directly to the traveler. Travel agency - in the event of the insolvency of its contractor should provide for the tourists a flight by another air carrier.
[Insolvency of tour operator as a conseuqence of insolvency of aircraft carrier]
Failure to perform air transport duties by a subcontractor - an aircraft carrier may result in the bankruptcy of a travel agency (so-called "cascade insolvency", "domino effect"). Insolvency of travel agency results new opportunieties. According to art. 7 sec. 1 of the Act of 24 November 2017 on tourist events and related tourist services, tour opera-
12 Commission Communication on passenger protection in the event of airline insolvency, 2013. Debates on BSP's qualities and shortcomings can be found on
http://ec.europa.eu/transport/themes/passengers/studies/doc/2011_ 30 03_minutes.pdf
13 Protection only applies to purchases by individual consumers; businesses are assumed not to require protection, so it is not extended to purchases by corporate credit cards.
14 Protection is limited to the amount paid for the services not delivered. It does not cover any additional losses (such as for example accommodation) or additional costs (such as for example alternative travel), and passengers would be required to organise and pay for their own accommodation and repatriation.
15 Commission Communication on passenger protection in the event of airline insolvency, 2013.
16 Commission Communication on passenger protection in the event of airline insolvency, 2013
tors and entrepreneurs facilitating the purchase of related tourist services are obliged to provide travelers in the event of t h e i r insolvency: aa) the costs of the continuation of the package tour or the costs of return to the country, including, in particular, transport and accommodation costs, including reasonable expenses incurred by travelers, where the tour operator or an entrepreneur facilitating the purchase of related travel services, contrary to the obligation, does not ensure this continuation or return, bb) reimbursement of payments made as payment for a tourist event or each paid entrepreneur's service facilitating the purchase of related tourist services, if for reasons related to the organizer tourism or entrepreneur facilitating the acquisition of related travel services or people who act on their behalf, a tourist event or any paid entrepreneur's service facilitating the purchase of related travel services is not or will not be implemented, cc) reimbursement of a part of the payment made for the tourist event corresponding to the part of the package or for each service paid to the entrepreneur facilitating the purchase of related travel services corresponding to the part of the service that has not been or will not be realized due to the reasons for the tourism organizer or entrepreneur facilitating the purchase of related tourist services, or people who act on their behalf. According to art. 14 sec. 1 of the Act of 24 November 2017 on tourist events and related tourist services in the event of insolvency of a tourist organizer or entrepreneur facilitating the purchase of related tourist services, the marshal of a province or an entity authorized by him to issue an advance payment order to cover the costs of continuing a tourist event or the cost of returning travelers to the country shall carry out activities related to the organization of return of travelers to country, if the tourism organizer or an entrepreneur facilitating the purchase of related tourism services, contrary to the obligation, does not ensure this return. Finally if the financial security will prove insufficient to cover the costs of continuing the tourist event or the cost of returning travelers to the country, the entity providing these securities immediately informs about the relevant voivodeship marshal and the Insurance Guarantee Fund. The Marshal of the voivodship or the unit indicated by him, applies to the Tourist Guarantee Fund for the payment of funds from the Tourist Guarantee Fund, if the financial security will prove insufficient to cover the costs of continuing the tourist event or the cost of returning travelers to the country.
20.7.[Doubts about the possibility of mobilizing funds from the Tourist Guarantee Fund].
In 2018 some Polish travel agents from the agency of intermediation in the sale of airline tickets collected contributions to the Tourist Guarantee Fund17. This practice has
17Art. 4 sec. 1, 2 Act of 24 November 2017 on tourist events and related tourist services stipulates that whenever the Act refers to:tourist service - it should be understood as: (aa) carriage of passengers,(bb) accommodation for purposes other than for stay purposes, which is not an integral part of passenger transport, (cc) rental of motor vehicles or other motor vehicles, (dd) another service provided to travelers which is not an integral part of the services referred above. Tourist event should be understood as a combination of at least two different types of tourist services for the same trip or holiday, meeting the conditions referred to in art. 5 sec. 1. Art. 5 sec. 1 provides that a tourist event shall be created if: 1) tourist services have been combined by one tourist entrepreneur, including at the request of the traveler or in accordance with his choice, before concluding an agreement covering all services or 2) regardless of whether separate agreements have been concluded with suppliers of individual tourist services, these services are: a) purchased at one point of sale and selected before the traveler agreed to make the payment or offered or sold at a price
caused serious theoretical and practical controversy as to whether the contribution is required in this case. Travel agents explained that their service includes not only the sale of an airline ticket, but the care of the guide - resident after landing at the airport, readiness of the guide - resident to help (mediate) in the possible borrowing of the car, etc18. So in the case of selling tickets by travel agency may be in doubt as to whether funds from the Tourist Guarantee Fund should not be mobilized. However, this issue is a separate legal problem.
20.8. [Protection by interlining]
etwork airlines (a group of aircraft carriers) may issue special tickets for flights involving segments on different airlines, where the ticket is issued by one (issuing) carrier and valid for all others. The issuing carrier receives payment for the ticket, and retains it until the passenger completes their journey. If the carrying airline becomes insolvent the issuing airline can either reimburse the passenger, or if the passenger is stranded, the ticket will be valid on other airlines which are participating in the interlining agreement. If the issuing airline becomes insolvent, the carrying airline may still accept the travel of the passenger, although this is not legally guaranteed.
20.9.[Consular assistance in particular, specific cases]
The State is not obliged to help a purely private air carrier in case of the carrier's insolvency. Should the State help the citizens remaining abroad? The basic act of international consular law is the Convention Viennese on consular relations established in Vienna on April 24, 1963. According to art. 5 lit. e) of this Convention, consular functions rely on on providing help and care to citizens of the statesender, both natural and legal persons. The consul's basic tasks, in the Polish law, are currently specified in the Act of 13 June 25, 2015 the Consular law. According to art. 18 sec. 1 the Consular law the consul in the exercise of consular functions protects the rights and interests of the Republic of Poland and its citizens within the limits permitted by international law. According to art. 20 sec. 1 the Consular Law the consul provides assistance to a Polish citizen19, in particular in the event of necessity of a (aa) sudden return of a Polish citizen (bb) deprived of financial resources to the Republic of Poland or to his country of residence (consular assistance). According to art. 20 sec. 2 the Consular Law consular assistance shall be provided to the extent necessary and with the necessary measures for protection important rights and interests of a Polish citizen. However regulations on consular assistance
covering all services or at a total price, or when one of those prices is charged to the buyer, or c) advertised or sold using the term "tourist event" or the like, or d) combined after the conclusion of the contract under which the traveler was entitled to choose between different types of travel services, or e) purchased from separate tour operators through related online booking processes, during which the tourist entrepreneur with whom the first contract was concluded passes to another tourist entrepreneur or tourist entrepreneurs: name and surname of the traveler, email address and payment details, and the contract with this another tourist entrepreneur or tourism entrepreneurs will be concluded no later than 24 hours after confirming the reservation of the first tourist service.
18 A definition for seat-only tickets is given in Regulation 1008/2008, as "sale of seats, without any other service bundled, such as accommodation, directly to the public by the air carrier or its authorised agent or a charterer".
19 To the same extent as a Polish citizen, the consul shall provide consular assistance to the citizen a Member State of the European Union that is in the territory of a host country that is not a Member State European Union, does not have a diplomatic representation or consular office, or if not may, in a given case, provide consular assistance to that citizen (art. 21 sec. 1 the Consular Law).
are not an adequate basis for organizing mass, organized returns to the country of the clients of an insolvent aircraft carrier. Consular assistance provided to the Polish citizens is subject to strict public finance discipline. Spending of these funds is, among others, subject to the control of the Supreme Audit Office20. Consular assistance in returning to the country is rather individual. Granting such an assistance requires compliance with rigorous prerequisites. The case of a customer of an insolvent aircraft carrier will usually not be the case of the necessity of a sudden return of a Polish citizen deprived of funds.
20.10.[Submission of claims in bankruptcy proceedings The possibility of pursuing claims against members of the board of airlines by way of a class action or individual suit]
Tourists - as ex post measure - can submit claims - in an individual way - to the bankruptcy estate of the aircraft carrier. The prospect of satisfying creditors in such proceedings is not - statistically - large. The provisions of Polish law do not introduce any special convenience for consumers, (for example curator for creditors), dedicated to this case21.
According to art. 21 the Bankruptcy Law the debtor (aircraft carrier) is strictly obliged, not later than within thirty days from the day on which the basis for the declaration of bankruptcy appeared, to file for bankruptcy in the court. If the debtor is a legal person or other organizational unit without legal personality, whom the separate law grants legal capacity, the obligation to file for bankruptcy in the court, dues on anyone who, under the law, partnership agreement or statute, has the right to conduct debtor's affairs and to represent him, alone or jointly with other persons. Such persons are liable for any damage caused as a result of failure to submit the application within the due time, unless they are not at fault. These persons may be released from liability, in particular if they prove that within the period of thirty days from the day on which the basis for the declaration of bankruptcy appeared, the restructuring procedure was opened or the arrangement was approved in the proceeding to approve the arrangement. In the case of seeking damages by the creditor of an insolvent debtor, it is presumed that the damage, covers the amount of the creditor's unsecured claim against the debtor.
[Indirect forms of passengers protection]
There are indirect ways of protection as well. Regulation (EC) No 1008/2008 gives authorities powers in relation to the financial stability of aircraft carriers to ensure that they will be in a position to meet their obligations under the consumer acquis. Article 9 sec. 1 of Regulation (EC) 1008/2008 stipulates that the concession authorities of Member States must suspend or revoke the Operating Licence of a Community air carrier if they are no longer
satisfied it can meet its actual and potential obligations for a 12-month period.
Conclusions
I. For the smooth performance of aviation operations, the air carrier should meet a number of formal and substantive requirements, including the availability of, among others, valid AOC - air carrier certificate and concession.
II. The financial status of an air carrier is not itself subject to the AOC certification. However, the subject of certification checks may already be the consequences of the air carrier's poor financial status.
III. In order to maintain the operating concession granted by the authority, the air carrier should be able to meet existing and potential obligations for a period of 12 months.
IV. The opening of the restructuring or the declaration of bankruptcy does not automatically mean the expiry of the concession but it is the basis for initiating proceedings by the President of the ULC to assess the financial standing of the licensee and based on the results of the proceedings, within three months, the President of the Civil Aviation Office verifies the concession status in the way that he can concessions (a) withdraw, (b) suspend, (c) suspend and grant a temporary license. In the examined case of a carrier with a concession, the President of ULC undertook proportional actions and suspended the concession in connection with the carrier's bankruptcy.
V. If the restructuring is opened, it is likely that the concession will be suspended and the so-called temporary concession will be granted. The ULC President may grant a provisional license for a period not exceeding 12 months, until the financial reorganization of a Community air carrier, provided that there is no risk to the safety of the temporary license reflecting, if applicable, any changes to the AOC and that there is a real prospect of rebuilding financial situation during this period. In order to prove the latter, the concession holder submits to the President of ULC a special plan.
VI. In view of the substantive regulation of the issue of concessions in the Regulation of the European Parliament and the Council, administrative succession, referred to in art. 317 sec. 1 The Bankruptcy Law it will not apply in the case of the company's sale by the trustee, either in accordance with general principles or within the framework of liquidation. One can not exclude the possibility of obtaining a temporary license if the bankrupt enterprise is sold quickly.
VII. The declaration of bankruptcy, the opening of restructuring, the loss, suspension of the company-daughter concession does not affect the mother company's concession.
VIII. The system of consumer protection in Poland against air carrier bankruptcy is dispersed and in fact depends on many factors.
20 https://www.nik.gov.pl/plik/id,15828,vp,18343.pdf
21 R. Adamus, Umowa o podróz w prawie polskim, Warszawa 2012, p. 179
