Introduction
Background and expected implementation
Features of new procedure
Processing and interaction system


Introduction

On 17 March 2022, Order TMA/201/2022 was published in the Spanish Official Gazette, approving a new alternative dispute resolution (ADR) procedure for air passenger claims in Spain (for further details, please see "New ADR proceeding aims to improve resolution of air passenger disputes" and "New ADR proceeding for air passenger claims: legality of new regulation").

The Spanish Aviation and Safety Agency (AESA) is now in the final stages of implementing this new proceeding. Recently, the AESA organised a meeting to explain some of the mechanics and issues that airlines must take into account. This article summarises the topics covered.

Background and expected implementation

According to the current regulations, the new AESA ADR proceeding will enter into force when the AESA is confirmed as an accredited entity. Thereafter, the new procedure will apply to disruptions that occur on or after the second day of the following month, where the air carrier's liability is subject to Regulation (EC) 261/2004 or Regulation (EC) 1107/2006.

According to the meeting, the AESA accreditation is expected to be published in February 2023 and, therefore, the new procedure will apply to incidents occurring from 2 March 2023 onwards. However, the implementation of the procedure might be further delayed.

The entry into force of the new ADR procedure requires airlines to:

  • make available to passengers, at least in Spanish, the prior complaint form adopted by the AESA. This form must be made available on the airline's website and at its customer services desks, including at airport counters; and
  • provide express information on the existence of the ADR procedure upon receipt of a customer's prior complaint, including:
    • the possibility to appeal to the AESA within one year of submission of the original complaint if the airline fails to reply or provides an unsatisfactory reply;
    • the fact the AESA's reply will be binding on airlines; and
    • details of how to access the AESA's website.

Features of new procedure

The following is a summary of the features of the new procedure, as described at the meeting:

  • The ADR procedure will have a formal and contradictory system that is similar to the judicial instance, comprising:
    • an initial pleadings stage;
    • an optional secondary pleadings stage (known as a "simultaneous hearing");
    • the taking of evidence;
    • another secondary pleadings stage;
    • eventual correction or amendment.
  • The airline's defence must be submitted within 20 days. It must include a general report on the flight in question and a specific report regarding the passenger's claim (reports one and two, respectively). The general flight report can be used in subsequent claims concerning the same flight.
  • The duration of the ADR procedure is 90 days. This period may be extended for a further 90 days in complex situations.
  • The AESA's decision is binding on the airline, not on the passenger.
  • If the AESA imposes a payment obligation on the carrier, the carrier must pay the sum awarded to the passenger within one month and submit appropriate evidence to the AESA.
  • Air carriers may challenge the AESA's decisions in the ordinary courts within two months. This legal action does not suspend the obligation to pay.
  • Failure to comply with the AESA's decision means that:
    • the passenger can claim the payment due through judicial enforcement; and
    • the AESA can impose a fine on the airline.
  • The procedure may only be used in disputes concerning flights over which the AESA has jurisdiction (ie, flights from Spain operated by any airline and flights from outside the European Union to Spain, operated by an EU airline).
  • The procedure may be used in disputes concerning any breaches of the obligations of Regulation (EC) 261/2004 (ie, compensation, assistance and reimbursement) and, where applicable, Regulation (EC) 1107/2006. In principle, additional compensation such as damages, pre-paid expenses and moral damages are excluded from the scope of the new proceeding.
  • The AESA will not accept legal standing by virtue of an assignment of a claim, in principle.

Processing and interaction system

During the meeting, information was provided on the system for processing files. The most important aspects in this respect are outlined below:

  • The processing system will be online only and operate through the AESA's own electronic platform.
  • Airlines will receive and be able to download notifications within 10 days from the submission of the passenger's complaint through a specific email account designed for this purpose (the AESA previously issued communications to request the designation of representatives and email addresses).
  • Access to the complaint and all subsequent communications that the company exchanges with the AESA, including the submission of letters, will only be possible through the AESA's electronic platform.
  • Electronic signatures may not be those of an individual person; they must be on behalf of the company. This may create issues for non-Spanish airlines as a specific type of digital signature will have to be obtained.

For further information on this topic please contact Jaime Fernández Cortés at Augusta Abogados by telephone (+34 933 621 620) or email ([email protected]). The Augusta Abogados website can be accessed at www.augustaabogados.com.