Entry into force of binding ADR in air transport claims

Introduction
The Spanish State Aviation Safety Agency (AESA) has been accredited as an alternative dispute resolution (ADR) entity in the field of air transport (for further details please see “New ADR proceeding aims to improve resolution of air passenger disputes”).(1)

With this accreditation, and in accordance with a previous order,(2) the AESA will be responsible for the resolution of the new ADR procedure in claims brought in Spain that are based on the EU regulations on passenger protection.(3) In addition, the new procedure will now effectively enter into force. It will fully apply to flights operated from 2 June 2023.

Applicability
Disruptions that occur on flights after 2 June 2023 can be processed, at the claimant’s discretion, through:

• the usual judicial system before the courts of first instance; or
• the new ADR procedure before the AESA.

This possibility will be limited to incidents covered by the scope of the ADR– primarily:

• claims regarding cancellations, long delays and situations of “overbooking” subject to Regulation (EC) 261/2004; and
• incidents involving passengers with reduced mobility subject to Regulation (EC) 1107/2006.

Claims based on different regulations – such as the Montreal Convention (ie, incidents involving baggage and bodily injuries) – and claims arising from the transport contract are excluded.

Enforceability
The new ADR procedure, which is expected to have a regular duration of 90 days, will conclude with a decision by the AESA that will be binding on the airline, but not on the passenger. The AESA’s decision will constitute an enforceable title with which the airline must comply within a maximum period of one month, without prejudice to the possibility of appealing it
before the courts.

Passenger information
To make all consumers aware of the new regulations, the possibility of resorting to the ADR procedure must appear and be accessible in a comprehensible manner on airlines’ websites. It must also be highlighted in the general terms and conditions of the contract that bind the passenger to the airline. From the indicated date, passengers will have access to complaint forms prepared in accordance with the new regulations. These forms must be available on airlines’ websites as well as in customer service departments and services, including sales counters located in airports.

Prior complaints to airlines
Significantly, it is envisaged that a prior complaint to the airline – and the lack of a positive response within one month – will be a mandatory requirement for the initiation of a subsequent ADR procedure before the AESA. The aim is to ensure that the airline is aware of the complaint and has direct contact with the passenger before they initiate an ADR procedure. This gives the parties a final opportunity to settle the dispute before it escalates to the entity responsible for resolving it with binding effects for the airline. Although this requirement does not directly apply to claims that are brought before the ordinary jurisdiction, it is possible that the courts may apply it analogously in the case of airlines that have provided for it in their
terms and conditions.

For further information on this topic please contact Jaime Fernández Cortés at Augusta Abogados 

Endnotes
(1) Order TMA/469/2023, Official State Gazette, 10 May 2023.
(2) Order TMA/201/2022 of 14 March 2022.
(3) Regulation (EC) 261/2004 and Regulation (EC) 1107/2006.