Everyone who travels by air is familiar with the basic civil aviation security procedures carried out by the airport, such as the scanning of baggage, the need to remove watches and trouser belts, or access to a designated area only on presentation of a boarding pass. All these activities, the rights of passengers related to them and the obligations of airports are strictly regulated by law.
On European soil, on this subject, of particular note is Commission Implementing Regulation (EU) 2015/1998 of 5 November 2015, laying down detailed measures for the implementation of the common basic standards on aviation security[i], which is one of the cornerstones of the security of both travellers and the persons and property over which they travel. The not inconsiderable role of this regulation as a source of the obligation to carry liquids in packages of up to 100 ml, to remove shoes during personal checks and to scan the boarding pass before crossing the border of free access, as well as the numerous curiosities it contains, related, for example, to the issue of “naked scanners”, tours of restricted areas of the airport, or the division of the airport into security zones, makes selected sections of the Regulation worth paraphrasing, describing or quoting directly for popular scientific purposes, which this study attempts to do.
It is first necessary to define the main protagonist of the issue, i.e. to clarify what an airport is. This will be helped by the Aviation Law[ii], which, in its Article 2, contains numerous definitions, including several necessary to cope with the above task. This is because creating a complete description requires developing more than one concept. An airport is, according to the Act, an air use airport used for commercial flights. An airport is defined in the Act as an area entered in the appropriate register of airports, set aside on land, water or any other surface, which is intended, at least in part, for the purpose of take-offs, landings and surface or underwater movement of aircraft and – as distinguished from an airstrip – has within its boundaries buildings and facilities of a permanent nature. A commercial flight, on the other hand, is a flight that ends with a commercial landing, which in turn is a landing whose purpose is to pick up or drop off passengers, baggage or mail carried for compensation. However, such a definition of an airport, given the subject of this study, is not complete. Commission Implementing Regulation (EU) 2015/1998, which establishes detailed requirements for airport security, also includes an aircraft, bus, baggage trolley or other means of transport, as well as an aisle and a sleeve as part of an airport. As an aside, by doing so, the legislator seems to cut off any potential considerations arising from treating aircraft decks as quasi-territory of the state[iii], an evolution of the so-called territoriality principle and the maritime so-called flag principle[iv], the expression of which in Polish law is, for example, Article 5 of the Penal Code[v], stating that the provisions contained therein shall apply to an offender who has committed a criminal act on the territory of Poland, a Polish vessel or aircraft, unless an international agreement to which Poland is a party provides otherwise.
Knowing what an airport is, it is possible to describe the general security requirements for its design, which derive from the content of Annex 4 of Commission Implementing Regulation (EU) 2015/1998. According to the relevant – therein – standards, each airport should be divided into a public area, an airside area, a security restricted area, its critical parts and, where applicable, demarcated areas. These should be clearly demarcated to enable their proper protection.
The public area (so-called landside) and the operational area (so-called airside) form the basis of the division. The former ends at the security checkpoint, hence access to the latter is available to authorised personnel and screened passengers and baggage. There should be a physical barrier between the public and operational areas to prevent unauthorised access to the latter.
A security restricted area is first and foremost the part of an airport to which passengers who have already been screened have access, as well as that part of the airport through which departing hold baggage – also already screened – passes and the designated area for staging aircraft, where passengers and cargo are boarded. Part of the airside is therefore also a security restricted area, but this does not work the other way around. After all, the fact of being a duly screened passenger cannot entitle one to move around, for example in runways or hangars, to which only strictly defined persons and vehicles have access.
Restricted areas may have critical parts, which shall be designated when the airport exceeds the number of 60 persons with identification cards giving access to it. In that case, a critical area shall include at least those parts of an airport to which departing passengers already screened or screened departing hold baggage have access, unless it is so-called ‘secured baggage’, i.e. physically protected from the possibility of introduction of any objects.
Whenever a restricted or critical area becomes “contaminated”, i.e. an unauthorised – or simply a previously uncontrolled – person or cargo enters it, it must be searched for prohibited items. A search of the critical section in such a situation (or suspected situation) should be carried out immediately.
Access to security restricted areas for persons and vehicles is subject to possession of a valid boarding pass or equivalent, or a crew identification card, or an airport identification card, or a regulatory authority identification card recognised by the competent national authority, or a guided tour escorted by authorised persons. All vehicles must have a valid vehicle pass displayed in a prominent position.
Restricted areas have their own access points, which are secured by an electronic system limiting entry to one person at a time or are operated by a person authorised to perform access control. The condition of allowing one person at a time into an area may not be applied if the country concerned allows an exception in favour of access points through which only service officers pass.
Access to the airside is controlled and can only be granted if there is a reason for the person or vehicle to be in the area. Any person in the area should have the appropriate authorisation and all vehicles should have a vehicle pass displayed in a prominent position.
Commission Implementing Regulation (EU) 2015/1998 also regulates, inter alia, the screening of passengers, cabin baggage, hold baggage and aircraft searches. Movement from the less stringent areas described above, to those requiring higher levels of security, is conditional on undergoing just such a check.
Before the passenger is screened, he or she shall remove his or her outer clothes and hand them over to the security control relevant for cabin baggage. This may be dispensed with if the airport has equipment that can screen the passenger without removing his or her clothes. Each passenger – and any animal he or she may be carrying in the cabin – shall be screened by at least one of the following methods:
- manual control;
- metal detection gates;
- security scanners that do not use ionising radiation;
- trace explosive detection equipment in combination with a hand-held metal detector.
The following additional control measures may also be applied:
- hand-held metal detector used without the above-mentioned basic measure;
- explosive detection dogs;
- explosive trace detection equipment;
- shoe metal detection devices;
- shoe explosive detection devices.
It is worth mentioning that security scanners, both manually and automatically operated, can be used after the passenger has been informed about the technology used, the conditions attached to its use and the possibility to refuse screening. The equipment itself may not collect, store, print or retrieve images, however, images produced during the screening process may be retained for the time necessary for the authorised staff member reviewing the screening results to analyse them. Any data must be deleted immediately after the inspection, and access to and use of the image should be secured against unauthorised acquisition. It is worth mentioning that the staff member in question is located in another, separate room so that he or she cannot see the passenger being inspected other than on the screen of the device. In this room, it is prohibited to have any technical device enabling the collection, copying or photographing or recording of images. The images must not be combined with other personal data of the passenger and the passenger has the right to request that the image of his/her body be analysed by a member of staff of a specific gender. The passenger’s face should be blurred or darkened by equipment. Finally, it is worth mentioning that a passenger who refuses to participate in a security check carried out with this type of device must be subjected to an alternative check, including at least a manual check.
Cabin baggage should be properly prepared before it is screened. In particular, laptops and larger electrical items must be taken out and will be screened separately. It is possible to derogate from this rule and leave equipment inside e.g. a suitcase, but only if it can be screened with an explosive detection system that meets the relevant standards. Similarly, liquids, aerosols and gels shall be taken out of cabin baggage unless, as above, it is technically possible to use the device in view of the many closed containers in the baggage. According to the Regulation, this category of products includes pastes, emulsions, liquid and solid mixtures, the contents of pressurised containers, toothpaste, hair gels, drinks, soups, syrups, perfumes, shaving foam and any other products similar to the above. In cabin baggage, such items may be carried in individual containers, each of which may have a maximum of 100 ml or its equivalent in other metric systems or in so-called off-system units (e.g. approximately 3 troy ounces (oz) [vi]). Together they should be no more than 1 litre. They should be placed in a transparent, single plastic bag with a capacity not exceeding 1 litre, so that it can be determined on the spot and “at a glance” whether the maximum and total permitted capacity has been exceeded.
Cabin baggage is also screened using the above equipment, albeit with some differences such as the possibility of using ionising radiation. In this case, all items whose physical properties, such as density, make it impossible to analyse the contents of the baggage should be removed from the baggage. It is possible to exempt a category of baggage from the volume or type restrictions, but this is at the discretion of the State concerned.
The purpose of screening is to ensure that neither passengers nor their cabin baggage have any prohibited items that could enter the security restricted area or on board an aircraft. The list is long and goes beyond the scope of this document, but in particular firearms and projectile devices, toy weapons, tasers, stun guns, sharp-edged or sharp-edged objects, neutralising, repellent and similar gases and sprays, ice picks, razor blades, shaving knives, knives and other similar items, razor blades, cardboard cutters, blades longer than 6 cm, crowbars, drills, soldering irons, saws, screwdrivers, chisels, blunt instruments capable of being used to cause serious injury such as baseball bats, rubber truncheons, metal truncheons, police truncheons, explosives and similar.
A similar check to that for hand luggage is carried out for hold baggage, i.e. baggage that is checked into the hold at the appropriate counter at the airport and to which there is no direct access during the flight. This baggage is identified, tagged and linked to the passenger concerned.
In principle, precisely due to the lack of access to baggage during the flight, a wider catalogue of items can be transported in this way, however, explosives and incendiary substances and devices, including ammunition, primers, mines, grenades, including smoke grenades, etc., are prohibited.
Vehicles entering a critical area shall be checked manually, using explosive detection dogs and explosive trace detection equipment. A manual check consists of a thorough manual examination of selected areas of the vehicle, as well as their contents, to determine the possible presence of prohibited items.
It is also possible to search an aircraft. This is always done whenever there is reason to believe that unauthorised persons have had access to it or when it arrives from a particular country. A finding of possible unauthorised access may consist, for example, in a finding of inadequate security. The level of security required, on the other hand, depends, inter alia, on whether the aircraft has left the critical part of the airport, whether it was in a lockable hangar, whether there is easy access to it from ground level, etc.
In conclusion, airports play a key role in securing civil aviation, and the basis for their activities in this regard is in particular Executive Regulation (EU) 2015/1998. Given the well-known difficulty of bringing unauthorised items on board aircraft and the unquestionably excellent European statistics related to acts of unlawful interference on board aircraft involving such items, it seems that these regulations deserve a strongly positive assessment as legitimate and effective.
Artur Banach, attorney at law
[i] Commission Implementing Regulation (EU) 2015/1998 of 5 November 2015 laying down detailed measures for the implementation of the common basic standards on aviation security (OJ EU. L. 2015 No 299, p. 1 as amended);
[ii] Act of 3 July 2002. – Aviation Law (i.e. Journal of Laws 2023, item 2110);
[iii] J. Lachowski [in:] Penal Code. Commentary, 3rd edition, ed. V. Konarska-Wrzosek, Warsaw 2020, art. 5;
[iv] G. Szczygieł Liability of foreigners for crimes committed on the territory of Poland, Białystok 2021, p. 196;
[v] Act of 6 June 1997 Criminal Code (i.e. Journal of Laws 2022, item 1138, as amended);
[vi] Wikipedia (2003, 5 June) Uncja Medium in Polish: https://pl.wikipedia.org/wiki/Uncja [accessed 8.11.2023].
