All questions

Legal framework for liability

i International carriage

Spain is a state party to the following air law treaties (all in effect), among others:

  1. the Warsaw Convention 1929 (as subsequently amended by the Montreal and Hague Protocols);
  2. the Rome Convention 1933;
  3. the Chicago Convention 1944;
  4. the Rome Convention 1952;
  5. the Hague Convention 1970;
  6. the Montreal Convention 1971;
  7. the Montreal Convention 1999; and
  8. the Cape Town Convention 2001.

In accordance with Article 94 of the Spanish Constitution, once an international treaty has been approved by Parliament, ratified by the King and published in the State Official Gazette, it enjoys a higher hierarchical status than domestic legislation; consequently, its provisions prevail over any conflicting internal rules or provisions. Spanish judges regularly apply international treaties when those are applicable.

Of course, the full body of EU legislation on air carrier liability applies in Spain, such as Regulation (EC) 2027/97, as amended by Regulation (EC) 889/2002 and Council Decision 2001/539/EC.

In addition to EU legislation and to international treaties to which Spain is a party, the main Spanish domestic provisions applicable to aviation are:

  1. the 1954 Act on Pledges over Movable Assets and Mortgage without Displacement;
  2. the 1960 Air Navigation Act;
  3. Act 28/1988 on Instalment Sales of Movable Assets;
  4. the Air Safety Act 21/2003; and
  5. Royal Decree 384/2015, governing the granting of registration marks.
ii Internal and other non-convention carriage

Since Regulation (EC) 889/2002 extended the applicability of the Montreal Convention to all intra-European flights, the principles laid out in the Montreal Convention are also in force in respect of purely Spanish domestic flights.

Spain is a state signatory to the 1952 Rome Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface, which came into force in 1958. The Convention's aim is to ensure adequate compensation for persons who suffer damage caused on the surface by foreign aircraft, while limiting in a reasonable manner the extent of liabilities incurred for this damage in order not to hinder the development of international civil air transport. The 1952 Convention embraced the principles of the 1933 Convention but raised the liability limits.

From a domestic perspective, the 1960 Air Navigation Act also includes provisions to regulate carriers' liability for surface damage and basically follows the principles of the 1952 Rome Convention, although over the years the liability limits have been raised as well. Furthermore, in line with EU legislation, the Air Navigation Act expressly prevents carriers from using Spanish airspace if they cannot prove that they have insurance coverage for this specific type of damage.

iii General aviation regulation

The general provisions relating to the liability of air carriers in commercial operations apply to civil aviation aircraft as well. Given the very nature of civil aviation, the chances of purely domestic accidents (and therefore applicability of the 1960 Air Navigation Act) are higher, although the EU legal framework generally makes no distinction in this respect.

iv Passenger rights

As part of the European Union, Spain applies the entire set of European legislation, directives and guidelines relating to the protection of passengers, along with the provisions contained in international treaties such as the 1999 Montreal Convention where applicable. The provisions of Regulation 261/2004,2 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, are fully applicable in Spain and AESA and the Spanish courts regularly enforce this body of law.

From a purely domestic perspective, Spanish consumer protection laws are embodied mainly in Royal Legislative Decree 1/2007 on the Protection of Consumers and Users and apply to all transactions considered to be consumer transactions. Thus, to the extent that an airport operator engages in this kind of transaction, it will be caught by this legislation. Given the Spanish constitutional system, certain regions have issued their own consumer protection laws, which prevail over Royal Legislative Decree 1/2007 in their respective geographical areas. Finally, the domestic consumer protection rules are generally applied and interpreted by the courts of justice to afford the broadest possible protection to air passengers. In 2022, a new alternative dispute resolution system for passenger claims under Regulation 261/2004 was implemented. The practical effects of the new mechanism have yet to be seen, but the airline industry is concerned by the fact that the national enforcement body under this Regulation, AESA, will also act as arbitrator in claims brought by passengers.

v Other legislation

As a civil law country, the general principles of liability in Spain are set out in the Civil Code, which is a fault-based system. However, like many other countries, and particularly since its accession to the European Community, Spain has implemented liability principles in areas such as liability for defective products or product liability, direct engagement in anticompetitive behaviours, quasi-objective liability in environmental matters, direct criminal liability of company directors or officers in relation to corporate crimes, and it has widened the scope of criminal liability in private and public corruption cases. Notably, the 2015 Package Travel Directive has also been implemented in Spain through the addition of a full chapter devoted to this type of agreement in the General Act on Protection of Consumers and Users.