Complaints to Spanish State Aviation Safety Agency (AESA), an Option for Air Transport Users

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Further to our post Order TMA/201/2022, of 14 March: New procedure for the settlement of disputes in favour of air transport users we must now refer to Order TMA/469/2023 of 17 April accrediting the Spanish Aviation Safety Agency (AESA) as an alternative dispute resolution entity in the field of air transport.

In our previous post we already anticipated that AESA had to obtain such accreditation to provide the alternative dispute resolution (ADR) service to air transport users: ‘The procedure shall apply to incidents occurring after the first day of the month following publication in the ‘Boletín Oficial del Estado’. Order TMA/469/2023 having been published in the BOE of 10 May 2023, it will apply from 2 June 2023.

To activate this procedure, the first step is always to make a prior complaint to the airline and try to reach an amicable agreement with them. This first contact is expressly referred to in Article 6 of Order TMA/201/2022 of 14 March, as a step prior to initiating the alternative dispute resolution procedure before AESA. From the day of the incident, the user has 5 years to complain, and the airline should resolve the complaint within 1 month. If no reply is received or if the reply is not satisfactory, the affected person has 1 year from the date of the previous complaint to the airline to start the complaint procedure before AESA.

To do so, users must fill in a form provided by the Agency, adding the required documents. It is not until all the documents are available that the 90 calendar day deadline for AESA to resolve the complaint begins. However, this is also the beginning of the 21-day period within which to reject the complaint, without prejudice to the possible review to be requested at a later date by the interested party.

If the complaint is accepted, the airline or airport operator complained of shall be heard, as appropriate, and the complaint and documentation submitted by the affected party shall be forwarded to it. This is how a process of allegations and evidence is initiated between the parties, in which the Agency intervenes, and which will at all times inform the parties of their rights via its website.

The AESA Director will decide by means of a reasoned decision and will determine the measures to be applied in the case in question. As we have already reported, this decision will be binding on the carrier concerned, unlike before 2 June 2023. In principle, therefore, the carrier is obliged to comply with the decision and to send the Agency proof of compliance as soon as the decision is made. They must also inform the Agency whether they have contested the decision, which will be dealt with in the appropriate procedural area.

Legal claims by the passenger or the affected party, either as a challenge or as an original claim, are in practice channelled through oral proceedings due to their limited amount. However, should this scenario arise, other possible options to pursue financial claims, such as payment order proceedings, will have to be considered.

This regulation is a good proposal which, in addition to protecting passengers in complying with this regulation, aims to relieve the commercial courts of small claims, which could be resolved at an administrative level, with the help of AESA.

The long-term success of this procedure will depend on the real commitment of the parties to respect the Agency’s decisions, as in many cases airlines do not comply with the decision voluntarily and there is no subsequent follow-up of the case by AESA, so that consumers may decide to go directly ‘to court’, which means that the ultimate aim of this dispute resolution procedure would not have the intended effect.

The Relationship between “Extraordinary Circumstances” and Travel Cancellation/Delay in Air Law

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It is not an opinion, but a fact, that air transport is the safest means of travel, allowing the movement of cargo and passengers in a short space of time, and this on the basis of the significant distances that are travelled.

That said, the experience of frequent air travellers is subject to the very constraints of this mode of travel, which means that they are exposed to delays, most of them short but sometimes significant, as well as to unforeseen cancellations of their journey.

Except for certain, proven and weighty reasons that can be alleged (for example, notably adverse and public weather conditions at an airport), when airlines are complained about by passengers due to a delay or cancellation, it is not unusual for them to use as an excuse a brief argument of rejection alleging having suffered “extraordinary circumstances”, even when the affected parties do not know what these alleged circumstances are, of which they have had no notice or, simply, were received at the time as mere rumours in the boarding lounge, without coming from any reliable source whatsoever.

As a general rule, the applicable rules for compensating European passengers are those set out in the European Regulation 261/2004 establishing common rules on compensation and assistance to air passengers in the event of denied boarding and of cancellation or long delay of flights and Regulation (EC) No 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air.

Regulations that affect Spain, as well as the rulings that are issued in the study and resolution of each case of claims for delay/cancellation that have as their source the national courts, as well as those issued by the Court of Justice of the European Union (CJEU).

In principle, “extraordinary circumstances” are defined as unforeseeable, unavoidable situations due to external factors on the flight, which exempt airlines from paying compensation as force majeure. For its part, the European Regulation 261/2004 considers extraordinary circumstances to be situations that could not have been avoided even if the airline had taken all reasonable measures to avoid them.

This concept is undoubtedly subject to interpretation by the law and jurisprudence that develop it, and must be nuanced, which is why the application or not of this inconclusive concept has been studied case by case, assessing whether it was applicable to the rejection put forward by the airline in question. The onus is on the carrier to prove that these extraordinary circumstances were unavoidable, even if reasonable measures were taken, and that, once they arose, the actions taken were adequate to avoid, as far as possible, the cancellation or delay (both preventive and reactive actions).

Clearly, the reasonable measures to be taken by an air carrier must be technically and economically feasible, based on the fact that routes and flights have been planned to reduce the risks of delay and cancellation.

In short, we must bear in mind that when a passenger is offered a rejection of his right to compensation on the grounds of “extraordinary circumstances” alleged by the airline, the implications behind this allegation are greater than just sending the passenger a catch phrase, without the passenger being able to object to anything in defence of his right.

Therefore, three requirements are necessary: (i) the disruptive event must be qualified as an “extraordinary circumstance”; (ii) there must be a direct causal link between the event and the cancellation/delay; (iii) the event became unavoidable, even if reasonable measures had been taken, and the carrier must take action to avoid the cancellation/delay.

This issue, like many others inherent to the world of transport, highlights the main need in the case of events occurring that disrupt the agreed transport, and that is that a fair balance must always be sought between avoiding airlines being forced to make an evidentiary effort in the course of their daily business when a cancellation/delay event occurs, together with the duty to adequately protect passengers’ rights.

UNIPORTBILBAO highlights in its Newsletter the article by AIYON on the Sanctioning Power of the DGMM

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We would like to thank UNIPORTBILBAO – Port Community for including in its April Newsletter our article on the sanctioning power of the Directorate General of the Merchant Navy (DGMM), content that we published last February on our website.

AIYON Abogados, as a member of UNIPORTBILBAO, has been collaborating for several years with this multimodal logistics cluster founded in 1994, which was born from a group of public and private companies in the Basque Country whose objective is to promote, through cooperation, the competitive improvement and promotion of the PORT OF BILBAO and the companies and services related or linked to the port and its daily operations.

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“ESTRATEGIA EMPRESARIAL”, echoes our almost 9 years of experience in the market

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As a firm founded in 2015 in Bilbao, the publication highlights our multidisciplinary team of eight expert lawyers, valuing our comprehensive 360º legal advice. 

With a proven impact at national level acting from our four offices located in Bilbao, Cadiz, Madrid and Algeciras, with which we cover strategic areas for the transport and logistics sector, ESTRETAGIA EMPRESARIAL also highlights the fact that we have all kinds of collaborators at national and international level that help us to cover all the demands for advice and assistance that our clients may have anywhere in the world.

Likewise, the publication points out our commitment to disseminate all kinds of legislative and jurisprudential developments related to the logistics sector, both in terms of maritime law, transport law in general, insurance and national and international trade via our conferences, talks to clients or the two corporate websites: www.aiyon.es and shiparrestrelease.com.

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AIJA is held in Athens (Greece) with one of our lawyers as speaker

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As planned, the AIJA (International Association of Young Lawyers) Transport Seminar took place in Athens on 14-16 September.

It was a joint event in which the Arbitration Commission and the Public Procedure Commission also participated, bringing together more than 150 young international lawyers. Among them were our colleagues from AIYON Algeciras and AIYON Bilbao, Rocío López and Irantzu Sedano respectively. The latter is an active member of AIJA.

Both lawyers enjoyed six conferences dealing with relevant and topical issues in the transport sector, with the contribution of more than twenty professionals and experts in the field. Among them, the talk on “Blockchain”, “Double Twins” and Autonomous Transport, in which our colleague Irantzu Sedano actively participated as a speaker along with other colleagues from the association, deserves special mention.

In addition to the conferences and the work carried out by the commissions, the participants were also able to enjoy a wide range of leisure and local culture in their free time.

We would like to thank AIJA, and the entire organising committee of the event, for their work and dedication in carrying out this type of international event, which undoubtedly contributes to enriching greatly the transport sector and the professionals that make it up.

The Future of Air Cargo

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Until now, the concept of air cargo has been understood as the transfer of goods by air using the different types of aircraft available on the market to transport goods from one point of origin to another destination.

But this vision must now expand and evolve as the imminent entry of UAS (Unmanned Aircraft System), or what we colloquially call drones, into the commercial system becomes a reality.

Leaving aside the use of these systems for weapons and defence purposes, which in itself is a highly specialised world and there is much to analyse, we are interested in the commercial purposes sought by the development of drones and the impact they will have on the future of air cargo.

It is a fact that it is not easy to adapt national and international regulations to the great technological progress that is being experienced, but since 2017 the European Union has already begun to develop the so-called “U-space”, with impact in Spain from 2019 with projects led by ENAIRE, in order to urge a regulatory framework that will allow the management of UAS traffic in an automated and integrated manner with the management of manned aviation. All this to enable operations with unmanned aircraft in an orderly, fluid, safe and affordable manner.

A statement that is easy to make but difficult to execute, given that the “U-space” must be a safe and highly controlled (and certified) space in which the drones themselves, represented by their pilot; the service provider in that space that operates via the pilot; the provider of information services on the aircraft and its safety; the national control authorities; the security forces; and the general public as an interested party and recipient of any type of information will coexist; all of this, in addition to the traditional aviation itself, which we have known up to now as the “U-space”; the national control authorities; law enforcement agencies; and the general public as an interested party and recipient of any type of information; all of this, in addition to traditional passenger and cargo aviation itself, which we have known until now as the only one but which is considered “manned aviation”.

All this requires a “National Action Plan for the Deployment of U-space” (PANDU) in Spain, which is carried out through the coordinated action of the Directorate General of Civil Aviation (DGAC), the State Aviation Safety Agency (AESA) and ENAIRE, in conjunction with the Ministry of Defence. Thus, by the end of 2023 or early 2024, it is expected to have a controlled space in which to operate drones. This is a very important challenge and, without a doubt, unstoppable.

The evolution in the world of transport is constant and, therefore, this new reality should not surprise us, but there are other factors that help and drive these changes, such as the EU’s goal of minimising emissions from all modes of transport (with very demanding challenges for operators) and optimising the performance of equipment and people.

Thus, the use of UAS is seen as an alternative to transporting certain loads with a positive environmental and resource impact.

A mere example of the new reality that is coming, and in which the world of shipping is affected, is the fact of performing the tasks of shipping consignment and provisioning of a vessel through the use of drones. Let’s say that a ship calls at the port of Vigo, which until now has required the assistance of one or two operations staff from the shipping agent contracted to attend to it, in addition to the rest of the suppliers. If the needs for the delivery of documentation or supplies could be met through the use of drones, it would be feasible to save personnel movements (with their components of contamination and use of resources and equipment), and direct contact would not even be necessary in some cases where there might be necessary isolation situations, such as those experienced during COVID.

This is just one example of a reality that will undoubtedly change the way we understand air cargo transport and, in the not-too-distant future, passenger transport. A small change that only heralds the great change that is coming and to which we will have to adapt.

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WISTA SPAIN Annual Meeting, Algeciras 2023

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Last Friday 12 May, in the Millán Picazo Auditorium located in the Port of Algeciras, the Annual Conference of WISTA Spain took place under the title “Strait of Gibraltar: Bridge of Cooperation”, which was attended by our colleagues from Bilbao and Algeciras, Zuberoa Elorriaga, José Antonio Domínguez and Rocío López.

During the conference, the speakers, first-class professionals, carried out a reflective analysis from an eminently institutional perspective on the bilateral relations and cooperation between Spain and its neighbouring country, Morocco; two countries that cooperate as well as compete in the transport and logistics market. The advantages of the strategic location of the Strait of Gibraltar and the Port of Algeciras were also highlighted.

The presentation on the relevance of the Operation Crossing the Strait from the perspective of passengers and land transport was also quite useful, and somewhat more practical, in which details were given, among other topics, on the management of this operation in the ports of Algeciras, Ceuta and Morocco, as well as on the problems and traffic volumes, among others.

Finally, it is worth highlighting the interventions in relation to global trade and the transformation of freight traffic in the Strait of Gibraltar.

Without a doubt, WISTA Spain provided a great meeting opportunity, as well as fostering the pooling of knowledge and experience between local and national operators and highlighting the importance of women in the maritime and transport industry.

AIYON Abogados, and specifically its partners Zuberoa Elorriaga, José Antonio Domínguez and Rocío López, would like to thank WISTA Spain, and in particular the WISTA colleagues from Algeciras and Cádiz, for the excellent organisation of the event, which was very well attended.

Royal Decree-Law 14/2022 of 1 August and its most significant developments in the field of air transport

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Title II of this Royal Decree-Law contains measures on air transport that “counteract”, two years later, some of the measures that were implemented to reactivate the economy in the face of the impact of COVID-19 established by RDL 26/2020 of 7 July.

One of these measures that were implemented as a result of RDL 26/2020 of 7 July was Article 3, which included the procedure for the incorporation into Spanish domestic law of the Operational Guidelines adopted by the European Aviation Safety Agency (EASA) and the European Centre for Disease Prevention and Control (ECDC) for the management of air passengers and aviation personnel in relation to the COVID-19 pandemic at airports, thus establishing their mandatory nature once they were incorporated.

However, given the good evolution of the degree of immunisation achieved against COVID-19, which has been maintained over time since the RDL was issued, it has been decided to eliminate the obligatory nature of the application of these operational guidelines, which in the European Union were originally created as recommendations for its Member States, in order to give them the mere character of an original recommendation, thus avoiding imposing additional obligations to those required in the European Union.

The main reason for this is the fuller and more complete revival of the holiday tourism sector, as well as a return to highly competitive passenger air transport.

Nevertheless, the intention was to build on and not totally discard a procedure that has been shown to be at least partially effective, to have a permanent instrument for future response to such rapidly spreading diseases as COVID-19 that may emerge. Therefore, Article 9 of this Royal Decree-Law extends the application of the procedure for the adoption of operational guidelines to other public health emergencies of international concern declared by the World Health Organisation which, due to their impact, justify the adoption by the competent bodies of the European Union, or by an international organisation to which Spain is a party, of operational guidelines, guides or recommendations for the management of air passengers, aviation personnel or the use of airports. In other words, we are talking about measures that can only be adopted when there is an international public health emergency declared by official bodies.

It should be noted that the guidelines adopted in accordance with the provisions of this Royal Decree-Law will be called “operational guidelines”, which will have the character or nature of mere recommendations, but that without prejudice to the above, according to Article 10 of this Royal Decree-Law, it is stated that:

“by order of the Minister of Transport, Mobility and the Urban Agenda, following a favourable report from the Minister of Health, the mandatory nature of all the operational guidelines or any of their precepts may be established”.

The scope of application of these operational guidelines shall be both the persons transiting through the airports located in Spanish territory and the companies and personnel carrying out their activity in these facilities, as well as the managers of the airports located in the national territory; airlines and operators operating at these airports, including air taxi and general aviation operations; companies providing ancillary or related services and, in general, all persons transiting through airport infrastructures.

Airport managers and airlines should inform passengers, either through digital means (such as their mobile applications, or via email), the airport public address system, or signage about the preventive measures they have adopted in their case, following the recommendations set out in the appropriate operational guidelines for the future.

Regarding passengers, it should be pointed out that they must collaborate with airport managers, airlines and health authorities in the implementation of the measures of the operational guidelines that affect them. Likewise, they will continue to be obliged to submit to the health controls established by the Ministry of Health and to adopt the preventive measures that are established.

It is for all of the above reasons that we advise air passenger transport operators to be attentive to the new operational guidelines that may be drawn up in the future, in case they are interested in incorporating some of the recommendations that are contemplated internally, and likewise, to make them aware that according to art. 10 of this Royal Decree-Law, these future operational guidelines could become mandatory, so they should also monitor and consider whether, faced with an operational guideline about which there is a rumour that it could become mandatory, they should begin to incorporate it from its initial phase, i.e. when it is still in the nature of a recommendation, in order to be more efficient in its management.

AIYON Abogados participates in the Special Supplement on Transport and Logistics of El Correo

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On the occasion of the celebration of the “Empack and Logistics & Automotion” trade fair, which will take place at the Bilbao Exhibition Centre (BEC) in Bilbao on 1 and 2 March 2023, the newspaper El Correo has prepared a special on Transport and Logistics with the collaboration of our firm.

AIYON has prepared the article “Why is adequate legal advice necessary for transport companies“, which aims to explain the need for the legal advisor to take an active part not only in the dispute resolution phases or claims that clients may require, but also in the previous phases of consultation, advice or processing. In any case, accompanying the operators in the logistics chain in an active and participative manner, trying to avoid possible setbacks in the development of their work, or to tackle problems, optimising their work as much as possible.

This collaboration is also accompanied by the participation as moderator of our partner from Bilbao, Zuberoa Elorriaga in the round table organised by the Basque Institute of Logistics and Sustainable Mobility (IVL/LEE) for the 2nd of March under the title “Present and Future of Land Freight Transport in the Basque Country”, in which Zuberoa will share space with professionals such as Sonia García – President of ASETRABI, Almudena Palomera – Manager Director at TUBACEX, Iñaki Cepeda – Manager of the GUITRANS Foundation, Inmaculada Ugarteche – Director of UNIPORT and Antonio Jaraices – Director of Organisation, Communication and Corporate Strategy at EUSKOTREN.

How Does Illegal Drug Trafficking Affect Transport?

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The most common way to bring illegal drugs in a country is by using the most common means of transport, such as airplanes used for air traffic, trucks used for land transportation, and ships used for maritime traffic.

When we think about how the entry of these illegal drugs can be developed in such a way that they cannot be detected in the transport from one country to another, in some cases it requires the active participation of the passengers and their luggage as essential elements that help the traffic, but in other cases the illegal cargo is hidden in containers or trailers, together with other regular cargo, in order to facilitate its transit. But there is an increasingly common phenomenon that we have been able to deal with at AIYON, which consists of the introduction of drugs hidden in the means of transport itself.

In their case, road haulage companies, especially those operating routs from Africa to Spain via the Strait of Gibraltar, face the increasingly common risk of having drug bales hidden on the outside of their trucks, specifically in the underbody, without the haulage companies or drivers being aware of it.

This operation seems to be carried out relatively easily and quickly, as the ways of placing the drugs range from fastening them to the axles of the truck with clips to placing them with magnets attached to the chassis, so that the illegal packages can be placed during any stop or rest of the driver’s journey. Although the truth is that sometimes it is not even necessary for the driver to be absent from the truck, as even when he is in the cabin, he may even not notice that there is someone under the truck (a phenomenon that also occurs when stowaways are transported).

It would be logical to think that, since it is the outside of the truck, a place in the vehicle to which anyone has access, the driver should not be held responsible until it is proven that he was the one who placed the drugs there or knew about their placement when transporting them, but the reality in the courts is quite different.  In fact, there are quite a few proceedings for crimes against the public health against truck drivers in which, after a routine inspection at border control, bundles of drugs are found and the drivers are finally convicted, even if it is not proven that they were the ones who placed the drugs there.

With regard to ships, the same problem can be detected when bales of up to 600 kilos are placed on the outside of a ship, attached to the hull below the waterline. Bales that require a complex operation, as it is divers who, at the port of origin, introduce the package into certain cavities of the ship so that they can face a sea crossing of several days and be picked up at the port of destination by other divers, without the shipowners or the crew having to be aware of it. It is a reality that there are certain ports around the world that require ships docking in them to carry out anti-drug inspection before putting to sea.

Once the problem has been detected by the police, the regular procedure carried out in the case of land transporters (whose involvement in the criminal act is often questioned more than in the case of shipowners) is to arrest the transporters allegedly involved and bring them before the police, and to proceed to the provisional weighing of the drugs by the police.

If after the provisional weighing, the quantity of drugs seized is considered notorious, the prosecutor will assess whether there is a risk of flight, the possibility of destruction of evidence and/or re-offending; having assessed this, he will draw up a report in which he will propose the measures he considers appropriate, including provisional imprisonment if necessary.

After an appearance in court on the tenth day and based on the weighing of the drugs, either Urgent Proceedings are initiated, i.e. without an investigation phase and with the possibility of an agreement with the prosecutor to pass sentence in the Examining Court, or Preliminary Proceedings in the event that they are requested by the prosecutor, issuing an Order for Abbreviated Proceedings in which a time limit is given for the written pleadings and defence. Finally, the Criminal Court, by means of an order, will admit or reject the evidence and set the date for the trial, with a subsequent sentence.

In view of this, surely the best advice we can give to carriers is to exercise extreme caution and, in the event that they are affected, to seek immediate advice from professional lawyers to best defend their interests.