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New ENAC Circular on Sanctioning Procedure Under Regulation (EC) No. 261/2004

L2b Aviation member Marco Marchegiani, Partner at Studio Pierallini, discusses the new ENAC Circular on sanctioning procedure.

On 13 May 2021 the Italian Civil Aviation Authority (ENAC) released the circular APT-23B, having as a main purpose to review and summarize the sanctioning procedure for infringements under EU Regulation (EC) No. 261/2004 on passengers rights in case of denied boarding, cancellation or long delay of flights.

As commonly known in the aviation sector, the 261 Regulation (article 16) requires that each Member State shall designate a responsible body for the enforcement of the relevant provisions, to whom “[…] each passenger may complain […] about an alleged infringement of this Regulation at any airport situated on the territory of a Member State or concerning any flight from a third country to an airport situated on that territory”. Under Italian Legislative Decree No. 69/2006, the responsible body is ENAC.

The first step is the investigation process led by the ENAC Airport Department, that ex officio or after a complaint, shall investigate the events. The infringement could be contested immediately to the pilot or notified to the air carrier’s registered office within 90 days from the infringement verification (in case of notification within Italian territory) or within 360 days if outside national borders, through a certified email or postal services.

Within 60 days from the immediate complaint or from the notification, the air carrier has the opportunity to pay a reduced amount, based on the specific infringement. If the air carrier does not pay the reduced fee within 60 days, the designated inspector shall complete the infringement report to ENAC and the air carrier will be allowed to reply to the complaint within 30 days from the notification.

After a final assessment the competent ENAC Airport Department could issue an order of injunction for the amount assessed, or otherwise a reasoned order of dismissal, both notified to the air carrier’s registered office, under the rules of the Italian Civil Procedure Code. In any case, passengers who have filed a complaint shall be informed.

Under the article 22 of Law No. 689/1981, air carriers may challenge the order of injunction before the Court where the infringement took place within 30 days from the notification (or 60 days if the registered office is abroad).

The mentioned ENAC Circular APT-23B also sets out the criteria to determine the administrative fine, among the others: (i) the severity of the infringement; (ii) the actions carried out by the carrier to avoid or mitigate the infringement’s consequences; (iii) the economic condition of the carrier; (iv) the amount of passengers involved in the infringement, compared to those usually embarked.

The ENAC Circular APT-23B provides useful guidelines in connection with sanctioning procedures under 261 Regulation, also in light of its annexes including several forms that ENAC has prepared to facilitate the submission of claims.

This article was originally published by Studio Pierallini in Aviation Journal, July 2021, no. 2.

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