We use cookies to give you the best online experience. By using our website you agree to our use of cookies in accordance with our cookie policy. Learn more here.Close Me
The Federal Council has passed draft legislation which increases
the sanctions for airlines which allow foreign passengers to fly
without sufficient travel documents (eg, passport, visa or permit
to stay) to enter the Swiss territory. The proposed legislation is
intended to reduce the number of people who arrive in Switzerland
with insufficient identification. In 2011 a violation of the
regulations was reported in almost 1,000 cases. Under the existing
legislation, however, sanctions are difficult to impose. This is
because in most cases it is practically impossible (with reasonable
effort and measures) to prove that an airline has violated the
standard of care, in particular at the airport of departure.
The legislation applies to airlines which transport passengers
from an airport of departure outside the Schengen Area to a Swiss
international airport.
Among other things, the proposed legislation would shift the
burden of proof to the airline, which would be required to
demonstrate that it has complied with the standard of care in the
event that a passenger provided insufficient travel documentation.
It is expected that such burden of proof would facilitate the
enforcement of sanctions, while also acting as a deterrent for
airlines. Two categories of lump-sum fines (rather than a fine
range based on the degree of negligence) would penalise regular and
severe violations of the standard of care and of reporting
obligations (upon request by the competent authorities, airlines
would have to forward an accurate and complete passenger data list
for specific flights, airports or countries of departure). The
proposed lump-sum fines are as follows:
Transportation of a passenger in violation of the duty of care
in respect of sufficient travel documents – Sfr4,000
(approximately €3,330) per passenger and in severe cases
Sfr16,000 (approximately €13,320) per passenger.
Violation of reporting obligations – Sfr4,000
(approximately €3,330) per flight and in severe cases
Sfr12,000 (approximately €10,000) per flight.
In turn, the proposed legislation provides exceptions through
which airlines could avoid sanctions. For example, no violation of
the standard of care would be found if the airline could prove that
it had implemented all necessary and reasonable organisational
measures to avoid transporting passengers without sufficient travel
documentation. The same would apply if:
it was not possible to verify the falsification of, or other
tampering with, travel documents;
it was not possible to verify that the travel documents did not
relate to the person in question; or
the Swiss authorities approved entry into the Swiss
territory.
In case of a violation of reporting obligations (transmission of
passenger data list), an exception would be available, among other
things, if the airline could prove that transmission of the
required data was not possible due to technical reasons beyond its
control.
The proposed legislation also serves as a legal basis for the
implementation of automatic data exchange between the Advanced
Passenger Information system and other databases (eg, ZEMIS, RIPOL,
the Schengen Information System and others), and transmission of
the results to the competent border authorities.
Consultation on the proposed legislation is underway with the
Swiss cantons and interested organisations. The consultation will
end on October 18 2012.
Originally published by International Law Office, July 2012
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
A discussion on a recent judgment in relation to a case which considered whether a charterers' failure to pay hire is a breach of a condition which entitles owners to cancel the charter, and claim damages for the unperformed part.
Law Nr. 6461 on the Liberalization of the Turkish Railway Transportation (the "Law") has been published on 1st of May in the Turkish Trade Registry Gazette with Nr. 28634.
On 25 February 2013 Kazakhstan adopted the new Rules on Entitlement of Airline Companies to Performance of Regular Internal Commercial Air Transportations (the "Rules").
Every year since the start of navigation on inland waters of Ukraine for ship owners of yachts, sailing and sport vessels under foreign flag set becomes relevant internal waters...
The Department for Transport has recently announced a new rail franchising programme following the cancellation of the West Coast mainline procurement and the discovery of serious technical flaws in the tendering process.
In the current climate, we are seeing increasing attempts by charterers to withhold hire on the basis that the vessel did not meet its contractual performance warranty.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
