Manner and course of the proceedings taking place before the Ombudsman
The purpose of proceedings concerning out-of-court consumer dispute resolution carried out by the Passengers’ Rights Ombudsman is to amicably resolve consumer disputes referred to in Article 205a of the Aviation Law, i.e. civil law disputes between a passenger and an air carrier, a tour operator or a ticket vendor. These proceedings mainly aim at developing such a solution which will be satisfying for both parties involved in the conflict. The Ombudsman helps in reaching agreement, but they do not issue decisions in the case.
During the proceedings the parties to the dispute may submit their own dispute resolution proposals and present points of view or evidence. The proceedings are terminated once the protocol in which the Ombudsman informs the parties on the outcome of the proceedings is drawn up.
The proceedings are successful only if both parties to the dispute are open to cooperation to develop an amicable dispute solution and are willing to make concessions on their demands and point of view.
Types of the cases determined
The Passengers’ Rights Ombudsman deals with resolving civil law disputes concerning pecuniary claims arising from the provisions of the Regulation No 261/2004/EC or the Regulation No 2111/2005/EC.
Proceedings concerning disputes arising from the Regulation No 261/2004/EC are related to flights from airports located on the territory of the Republic of Poland serviced by the EU air carriers as well as flights from third countries to these airports serviced by the EU air carriers.
Form of the proceedings
As a rule, out-of-court consumer dispute resolution is carried out in the electronic form and does not require the presence of the parties to the dispute.
If the participant of the proceedings does not consent to communicate in the electronic form, the exchange of information shall take place in the paper form.
There is no need to participate in the proceedings in person. The electronic letters sent by the parties do not have to be signed by the qualified electronic signature or ePUAP Trusted Profile. It is enough to fill in the form available on the website and send it to the indicated e-mail address firstname.lastname@example.org
. Furthermore, there is no need to send originals of documents attached to letters to the Ombudsman. It is enough to send their copies, scans or photos. These solutions are aimed at making the proceedings as easy and comfortable as possible and guaranteeing their availability.
Fees and costs
The Passengers’ Rights Ombudsman does not charge fees for carrying out ADR proceedings.
Duration of the proceedings
The Passengers’ Rights Ombudsman has 90 days to carry out the proceedings. This time is counted from the date of delivering to the Ombudsman a complete application for starting the proceedings. In the event of particularly complex dispute or upon a mutual request of the Parties to the proceedings this time limit may be extended. The Passengers’ Rights Ombudsman shall inform the Parties on every new extension of the time limit and set a new time limit.
Refusal to consider the dispute
The Passengers’ Rights Ombudsman shall refuse to consider the civil law dispute when:
- the passenger in the dispute with the entrepreneur has not exhausted the path of claim procedure,
- the complaint was submitted again in the same case;
- the case concerning the same complaint between the same parties is pending or it has been already considered by the entity entitled to conduct out-of-court consumer dispute resolution, other competent entity or the court,
- the complaint aims at causing nuisance for the other party.
Furthermore, the Passengers’ Rights Ombudsman may refuse to consider a civil law dispute when the consideration of a dispute will cause a significant interference in the Ombudsman’s activity.
Leaving such an application unprocessed also constitutes the refusal to consider the dispute in the event when:
- the applicant does not supplement the application with necessary information or documents within the prescribed time limit
- the subject of the application goes beyond the categories of disputes falling within the Ombudsman’s competence, in particular the passenger’s complaint concerns flights other than those from airports located at the territory of the Republic of Poland or flights from third countries to these airports serviced by the EU air carriers
- a year has lapsed from day on which the flight which is the subject of the complaint was operated or was to be operated.
Rights of parties to the proceedings
In the proceedings before the Passengers’ Rights Ombudsman the parties have a right to:
- participate in the proceedings, which includes:
- presenting points of view, documents and evidence,
- presenting points of view, documents and evidence presented by the other Party and opinions issued by experts as well as the possibility of responding to them,
- use the third parties’ assistance, including persons providing professional legal assistance,
- withdraw from the proceedings at any of its stages.
Participation in the proceedings does not exclude the possibility of pursuing complaints in the court proceedings. The dispute resolution proposal may differ from the decision which could be issued in the court proceedings.
The possible action brought before the court should contain the information whether the parties undertook attempts of mediation or other out-of-court manner of dispute resolution and if such attempts were not undertaken, the explanation of reason for not doing so.
Benefits arising from participation in the proceedings
The Passengers’ Rights Ombudsman is an important institution both for passengers and air carriers as well as the entire aviation market.
The access to cheap and fast manners of resolving consumer disputes means that costly court trials and a long waiting time for the settlement can be avoided. In comparison to proceedings before a common court, amicable proceedings are flexible, easy to proceed and free of charge. They are carried out by impartial and neutral experts. An air carrier who is willing to amicably resolve its disputes with passengers creates a positive image as well as increases loyalty and good relations with the passenger.
Results of completion of the proceedings
The Ombudsman’s decision is not binding. This means that it cannot be subject to enforcement, like a court judgement, even if both parties agreed to the proposed solution.
The possibility of out-of-court dispute resolution does not limit the passenger’s rights to bring an action before the common court.
Contractual provisions excluding the right to the court proceedings availability in the event of using the amicable proceedings before the Passengers’ Rights Ombudsman are ineffective.
The statement of claim lodged with the common court should contain the information whether the parties undertook attempts of mediation or other out-of-court manner of dispute resolution and if such attempts were not undertaken, the explanation of reason for not doing so (Article 187 § 1 of the Code of Civil Procedure).
The Passengers’ Rights Ombudsman’s activity is based on:
The ADR (Alternative Dispute Resolution) Act - the Act of 23 September 2016 on the out-of-court consumer dispute resolution (Journal of Laws of 2016, item 1823);
The Aviation Law Act - the act of 3 July 2002 the Aviation Law (Journal of Laws of 2019, item 1580 and item 1495);
Regulation No 261/2004
- Regulation (EC) 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 OJ L 46 p. 1, 2004 p. 1); Regulation No 261/2004
Regulation No 2111/2005
- Regulation (EC) No 2111/2005 of the European Parliament and of the Council of 14 December 2005 on the establishment of a Community list of air carriers subject to an operating ban within the Community and on informing air transport passengers of the identity of the operating air carrier, and repealing Article 9 of Directive 2004/36/EC; Regulation No 2111/2005
Rules and regulations of the Passengers’ Rights Ombudsman -
Regulations for the out-of-court resolution of consumer disputes by The Passengers' Right Ombudsman at The President of The Civil Aviation Regultions_ADR_v.ENG