The Spanish airport managing body “AENA” (Aena Aeropuertos S.A.) has implemented an increase in airport charges for airlines operating in Spanish airports which is effective from 1 July 2012. Whilst the average increase is 18.9%, the charges at the busier airports, Barajas in Madrid and El Prat in Barcelona, have been increased by 50%, which has led to an increase in airline tickets prices of up to nearly €12 for long-haul flights and up to € 9 for European flights, as it is customary for airlines to pass on these charges as part of the fares charged to their customers.

Surprisingly, the Spanish Authorities have also decided, only a few days before the effective date of this increase, to apply these increased charges to tickets sold before the effective date of  1 July 2012 as long as the flights in question are scheduled to depart after that date. From an airline’s point of view, this retrospective effect means that the difference between the former and the new fares cannot be charged to their passengers where tickets have already been sold before 1 July 2012. Some airlines may be able and willing to pass this difference on to their customers in the form of additional charges to their airfare, however it is anticipated that most airlines will not do so and this will lead to a significant financial impact for these airlines.

Is it possible for airlines to avoid the economic impact of the increased charges, or, could the increase of airport charges be challenged? Even though the airlines, as private entities, may not as a matter of law be able to challenge the legislative act that implemented the increase, they may file appeals against the monthly demands received from AENA. In accordance with the established charges collection system, the calculation of charges for flights operated throughout a month are issued at the beginning of the following month. For example, airlines will receive demands for charges relating to July 2012 in August 2012. Once the demand has been received, airlines may file an appeal within one month.

It is worth noting that tickets for flights taking off after the effective date of 1 July 2012 may relate to a number of different subsequent months. Therefore it is recommended that airlines consider challenging each monthly demand for the charges, as this may help establish a claim for a refund of these retrospective charges if they are later found to be illegal.

Though it is impossible to predict the results of appeals against the monthly demands for the charges, there are strong arguments against the legality of the charges increase, particularly in relation to their retrospective effect. For example, it may be argued that the relevant authorities have not complied with the procedure for consultation and remedy established by article 6 of European Directive 2009/12/CE on airport charges, which is now a part of Spanish law. In addition, the retrospective effect of the increase and the fact that airlines could not increase the price of tickets sold before 1 July 2012 does appear to be an infringement of Spanish national law.

Recent press suggests that a large number of airlines operating in Spain seem to be willing to challenge the increase of these airport charges. However, it is likely that the question regarding the legality of the retrospective charge increase will have to resolved by a Spanish, or even a European, court.