It is largely unknown that violations of the Air Passenger Rights Ordinance can also have administrative criminal consequences for airlines and their managers. Any affected passenger can file a report with the relevant district administrative authority. For legal reasons, this is obliged to at least initiate an official investigation.

EU Regulation 261/2004 is the basis for passenger rights that airlines must comply with in the event of delays and/or cancellations. Among other things, it is stipulated that care services, alternative transport and, under certain circumstances, compensation must be provided. In practice, however, many providers do not take it very seriously and claim, for example, that contrary to the highest court rulings of the Supreme Court and the ECJ, rebookings are only possible on their own flights or simply leave their passengers out in the cold without food or drinks. It is not uncommon for people to not respond at all to demands for reimbursement of additional costs and payment of compensation or to make absurd excuses, so that many cases end up in court.

Airline managers are liable for “traffic tickets” with their private assets

However, the Air Passenger Rights Ordinance is not purely civil law, but also administrative law. The ECJ already determined this some time ago, because if the government has been authorized, state authorities can also determine claims such as compensation payments by means of a decision. If legal force comes into effect, the claims can then be compulsorily collected by means of execution.

What is less known, however, is that ignoring passengers' rights constitutes an administrative offense and this can have consequences for both the airline and its managers. The responsible authorities can impose fines and, in particularly serious cases, prison sentences. The Austrian peculiarity: The proceedings are always carried out against the managing directors of the respective airline, whereby they are jointly liable with the airline in question for the penalty amount and are therefore theoretically liable for seizure. However, if a prison sentence is imposed, only the manager can take it himself.

So far, the volume of advertisements addressed to district administrative authorities has been very limited. Most are reimbursed by the state Agency for Passenger and Passenger Rights. This is probably also due to the fact that this procedure is largely unknown to many lawyers and even more so to affected passengers. This is probably also due to the complexity of the EU regulation, as in some points it overlaps with national administrative law.

Anyone can file reports with administrative authorities

The district administrative authority in whose area of ​​responsibility the airport of departure or destination in Austria is located is always responsible for administrative criminal proceedings regarding passenger rights. These are as follows:

• Vienna Airport: Bruck an der Leitha District Authority
• Graz Airport: Graz-Environment District Authority
• Klagenfurt Airport: Carinthia State Police Directorate as administrative authority, first instance
• Salzburg Airport: Salzburg State Police Directorate as administrative authority, first instance
• Linz Airport: Linz-Land District Authority
• Innsbruck Airport: Innsbruck State Police Directorate as administrative authority, first instance

Any person can report violations of passenger rights to the responsible district administrative authority. It is advisable to provide a statement of facts that includes the departure and destination, date, time, airline, flight number and a summary of what happened or what the airline did not comply with. It is advisable to provide your own contact details and those of witnesses (e.g. fellow travelers with whom you exchanged contact details at the gate for evidentiary purposes). Furthermore, everything should be as accurate as possible, for example with photos, screenshots, etc. documented and included with the advertisement.

Depending on the federal state, such advertisements can also be sent electronically to the district administrative authority using the citizen card (including cell phone signature and ID-Austria). To do this, you can use “General input” and then state in the running text that it is an ad. Alternatively, you can submit reports to authorities by email and post. Personal delivery is also possible. It should also be noted that you also have the right to make reports orally on record. It is recommended that you call the relevant authority in advance and make an appointment. Tip: Take all evidence and contact details of witnesses with you.

APF often files administrative criminal charges against airlines and their managers

If you want to save yourself the bureaucratic effort, you can hire a lawyer at your own expense. Some legal protection insurers cover this, but you should definitely consult the relevant insurance company. But there is also a free solution, because the Agency for Passenger and Passenger Rights also files reports against the airline or its management to the district administrative authorities if the arbitration proceedings are unsuccessful.

Spokesman Georg Loderbauer explains to Aviation.Direct: “The Agency for Passenger and Passenger Rights (apf) has been the statutory arbitration and enforcement body for rail, bus, ship and air traffic in Austria since the end of May 2015. As part of the arbitration activity, she is responsible for clarifying passenger complaints through out-of-court dispute resolution and helps passengers and passengers to exercise their rights in the event of a dispute with a company. In its function as an enforcement body, apf informs passengers and passengers on trains, buses, ships and flights about their rights, checks compliance with the passenger and passenger rights enshrined in EU regulations and, if necessary, takes further steps. to encourage the companies concerned to comply with their obligations. In the aviation sector, these are Regulation (EC) No. 261/2004 on common rules for compensation and assistance to passengers in the event of denied boarding and in the event of cancellation or long delay of flights and Regulation (EC) No. 1107/2006 on Rights of passengers with disabilities or reduced mobility. If a solution cannot be found within the framework of an arbitration procedure that eliminates the violation of a driver or passenger rights regulation, apf will file a report with the responsible administrative penal authority as part of its function as an enforcement body. On the one hand, aviation companies and civil airport operators are obliged to participate in apf arbitration proceedings and to provide all information necessary to assess the situation and to submit the necessary documents (Section 139a Paragraphs 1 and 2 LFG). On the other hand, the LFG makes it a criminal offense to violate the aforementioned passenger rights regulations. These administrative violations must be punished by the district administrative authority with a fine of up to 22 euros. If there are aggravating circumstances, a prison sentence of up to six weeks can be imposed in addition to a fine. In the event of violations of the legal obligation to participate in the arbitration process, the City of Vienna Magistrate, as the district administrative authority, is responsible. There is currently no general local jurisdiction for violations of the aforementioned regulations, which makes an individual case assessment necessary. In the aviation sector, apf has had party status in administrative criminal proceedings since the amendment to the LFG (BGBl 000/253 as amended by BGBl I 1957/151). The apf is therefore entitled to inspect all procedural files, to request all relevant information and to lodge a complaint with the Federal Administrative Court and an appeal with the Administrative Court.

APF itself is not an administrative body

The APF itself is not allowed to conduct administrative criminal proceedings because the federal government has not (yet) authorized it to do so. According to the state agency's media officer, this is currently the responsibility of the district administration authorities. However, the APF is authorized to file reports with the responsible office.

The APF spokesman answers the question of who is generally authorized to file administrative criminal charges in the event of violations of the Air Passenger Rights Ordinance as follows: “In principle, any person can file a report in the event of violations of the Air Passenger Rights Ordinances listed above. In its function as an arbitration board, apf sees itself as an intermediary between passengers and the airlines. From apf's point of view, out-of-court dispute resolution is preferable for resource reasons. “Apf basically has a good working basis with the companies concerned.”

Even prison sentences can be imposed on managers

But what actually happens if the airline is based abroad? Do Austrian administrative authorities have any control at all? APF spokesman Loderbauer answers this as follows: “In Austria, in accordance with Section 9 Paragraph 1 of the Administrative Criminal Law (VStG), anyone who is appointed to represent them externally is criminally responsible for compliance with administrative regulations by legal entities or registered partnerships, unless the administrative regulations state otherwise and unless responsible representatives have been appointed. According to Section 9 Para. 7 VStG, legal entities and registered partnerships are jointly liable for fines imposed on those appointed to represent them or on a responsible representative, other unfair consequences measured in money and the costs of the proceedings. The penalties are therefore generally issued against the CEO or the board members of the airline, with the airline itself being jointly and severally liable for the fine imposed. If the legally imposed administrative penalty is not paid, the respective state must take enforcement measures as part of a request for legal assistance.

In other words: in serious cases, prison sentences can be ordered. As is generally the case in a constitutional state, the person affected naturally has the right to take legal action against the decision. If this becomes legally binding in the final instance (or due to failure to appeal deadlines), the Austrian authorities could request administrative assistance from a foreign office throughout the EU area and then use them to collect the fine or even enforce the start of the prison sentence.

It can therefore be very expensive for managers if the companies they run “forget” to pay their “traffic tickets”, because they are also liable with their private assets. Remarkably, there are no statistics at all on how many administrative criminal proceedings have been carried out in connection with passenger rights, what penalties have been imposed or how many of them have been dropped or otherwise “fizzled out”.