Spotlight on key liability issues for the aviation sector in Spain

All the questions

Legal framework of liability

i International transportation

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

  1. the Warsaw Convention of 1929 (as subsequently amended by the Montreal and Hague Protocols);
  2. the Rome Convention of 1933;
  3. the Chicago Convention of 1944;
  4. the Rome Convention of 1952;
  5. the 1970 Hague Convention;
  6. the Montreal Convention 1971;
  7. the Montreal Convention 1999; and
  8. 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 Official State Gazette, it enjoys a higher hierarchical status than legislation. national; consequently, its provisions prevail over any conflicting rules or internal provisions. Spanish judges regularly apply international treaties when applicable.

Of course, all EU air carrier liability legislation 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 international treaties to which Spain is a party, the main Spanish national provisions applicable to aviation are:

  1. the 1954 law on movable and mortgage pledges without displacement;
  2. Air Navigation Act 1960;
  3. Law 28/1988 on installment sales of movable property;
  4. Aviation Safety Law 21/2003; and
  5. Royal Decree 384/2015, regulating the granting of registration marks.

ii Domestic transport and other non-conventional transport

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

Spain is a signatory state to the Rome Convention of 1952 on damage caused by foreign aircraft to third parties on the surface, which entered into force in 1958. The objective of the Convention is to ensure adequate compensation for persons that suffer surface damage from foreign aircraft. , while reasonably limiting the extent of liability incurred for such damage so as not to impede the development of international civil air transport. The 1952 Convention incorporates the principles of the 1933 Convention but raises the limits of liability.

From a national perspective, the Air Navigation Act 1960 also includes provisions to regulate the liability of carriers for surface damage and essentially follows the principles of the Rome Convention of 1952, although at over the years, liability limits have also been raised. In addition, in accordance with EU law, the Air Navigation Act expressly prohibits carriers from using Spanish airspace if they cannot prove that they have insurance cover for that specific type. of damage.

iii General Aviation Regulations

The general provisions relating to the liability of air carriers in commercial operation also apply to civil aviation aircraft. Given the very nature of civil aviation, the risks of purely national accidents (and therefore the applicability of the Air Navigation Act 1960) are higher, although the EU legal framework does not generally no distinction in this regard.

iv Passenger rights

As a member of the European Union, Spain applies all European legislation, directives and guidelines relating to the protection of passengers, as well as the provisions contained in international treaties such as the Montreal Convention of 1999, if applicable. The provisions of Regulation 261/2004,2 establishing common rules for compensation and assistance to passengers in the event of denied boarding and cancellation or long delay of flights, are fully applicable in Spain and AESA and the Spanish courts regularly apply this set of laws .

From a purely national point of view, Spanish consumer protection laws are mainly incorporated in the Royal Legislative Decree 1/2007 on the protection of consumers and users and apply to all transactions considered consumer transactions. . Thus, to the extent that an airport operator engages in this type of transaction, it will be subject to this act. Given the Spanish constitutional system, some regions have enacted their own consumer protection laws, which override Royal Legislative Decree 1/2007 in their respective geographical areas. Finally, national consumer protection rules are generally applied and interpreted by courts to offer the broadest possible protection to air passengers. In 2022, a new out-of-court dispute resolution system for passenger complaints under Regulation 261/2004 was introduced. The practical effects of the new mechanism are not yet visible, but the air transport industry is concerned that the national body in charge of the application of this regulation, EASA, will also act as an arbiter in passenger complaints.

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 product liability or product liability, direct involvement in anti-competitive behavior, quasi-strict liability in environmental matters, direct criminal liability civil liability of company directors or officers for 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 comprehensive chapter dedicated to this type of agreement in the General Consumer and User Protection Law.

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