Article 8.1-a) of the Regulation (EU) 261/2004

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In its judgment dated 12th September 2018, Case C-601/17, the EUCJ held that Regulation EU n. 261/2004, and in particular Article 8.1-a) thereof, must be interpreted as meaning that the price of the ticket to be taken into consideration for the purposes of determining the reimbursement owed by the air carrier to a passenger in the event of cancellation of a flight includes the difference between the amount paid by that passenger and the amount received by the air carrier, which corresponds to a commission collected by a person (or authorised agent) acting as an intermediary between those two parties, unless that commission was set without the knowledge of the air carrier, which it is for the referring court to ascertain.

The Court took into account that the objectives of Regulation EU n. 261/2004 are not only to ensure a high level of protection for passengers but also to strike a balance between the interests of passengers and those of air carriers.

In the light of those objectives, the Court considered that, while a commission collected by an intermediary from a passenger when a ticket was bought must, in principle, be regarded as a component of the price to be reimbursed to that passenger in the event of cancellation of the corresponding flight, its inclusion must nevertheless be subject to certain limits, in view of the interests of the air carriers which it affects.

 

New revision of the “Tax Lease”

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At the end of July, the Court of Justice of the European Union (CJEU), the highest authority of the Community, annulled the sentence delivered by the General Court of the European Union (GC) on the so-called “Spanish tax lease system” or “Tax lease”.

Let us recall that the now annulled sentence was delivered by the CJEU in 2015 and it set aside a previous decision of the European Commission by means of which the Commission ordered the recovery of the tax aids granted by Spain to the maritime shipping companies between 2007 and 2011 for considering the State aids illegal and incompatible with the internal European market. The Commission reached this conclusion after a formal investigation which concluded on July 17th 2013 with the Decision, now annulled by the CJEU, on the existence of tax aids granted by Spain whose only beneficiaries were Economic Interest Groups (EIG) and their investors. This decision, needless to say, had an important impact on the affected Spanish naval sector and was appealed before the CJEU by the Spanish government and by numerous investors of the EIGs.

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Scope and delimitation of article 3.1.A) of European Regulation No. 261/2004, according to the CJEU

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The Court of Justice of the European Union (CJEU) has recently ruled on the scope and delimitation of Article 3.1.a) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004, which establishes common rules on compensation and assistance to air passengers in the event of denied boarding and of cancellation or long delays of flights. Read more

Amendment of the Organic Law on Counter Smuggling

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On July 13th 2018, the Council of Ministers approved the preliminary draft of Amendment of the Organic Law 12/1995, of December 12th, on Counter Smuggling, proposed by the Ministry of Finance – Customs and Excise Department .

The aim of this legislative initiative is to strengthen the fight against the criminal organizations involved in drug trafficking and tobacco and drug smuggling in Spain by declaring, for the purpose of the preliminary draft, the so-called RHIBS (rigid-hulled inflatable boat) as a prohibited type. The preliminary draft specifies that the types to be considered illegal are: a) rigid-hulled inflatable boats over 8 meters in length; b) or under 8 meters in length but with power greater than 150 kW (203.94 CV); c) and any other boats that might be suspected, on the basis of reasonable indications, to be used for committing or enabling the commission of an offence of smuggling. If the preliminary draft is adopted, the bodies responsible for suppressing these criminal activities shall be allowed to confiscate those high-speed boats that “are supposedly used” for committing smuggling-related criminal acts. Read more

Conflict resolution: PASSENGER CLAIMS

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With a clear bet in favour of cruise tourism due to the relevance that this sector has in the economy of our country, Spain has achieved a privileged position in the global context of this sector. According to data from the public entity Puertos del Estado, in 2017 the number of visitors on cruise ships exceeded by 9 million, making Spain the second largest European country in the number of cruise passengers. Puertos del Estado estimates that by 2020, Spain will receive 9.5 million cruise passengers.

These data must be completed with regular line vessels that progressively add tourist visits year after year. In 2017, the total number of passengers traveling on regular lines amounted to 24.7 million. Although the majority of these lines are dedicated to the traffic between the peninsula and Africa and inter-island connections, it is expected that these numbers will increase as the routes linking Spain with Italy and the United Kingdom or the recently inaugurated line between Santander and the Irish port of Cork, are gaining prominence. Read more

Inspection of cargo securing on trucks, clarification by Directorate General of Traffic (DGT)

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On 17th April 2018, we published a post about the entry into force of the Royal Decree no. 563/2017 related to the technical roadside inspections of the roadworthiness of commercial vehicles circulating in Spain. This article supplemented the previous post published on 13 June 2017 “Royal Decree n. 563/2017 of June 2nd 2017, “Technical Inspection of Commercial Vehicles”. Read more

Air transport strikes: extraordinary circumstances?

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Summer is nearly here and with it the desired vacations. With that in mind, we, AIYON Abogados, consider that it is the right time to bring up one of the common fears of tourists and travelers: Will I be affected by pilot, air traffic controller or airport staff strike?

Without undermining the concept of strike as a response mechanism for workers to claim and protect their legitimate rights, the fact is that the disruptions resulting from a strike are more than significant: delays, cancellations, and multitudes of angry passengers. Luckily for the latter, in the light of the European Regulation nº 261/2004 and from the interpretations by the various Courts engaged in its development, it will be difficult for the air carriers to allege the existence of an “extraordinary circumstance” in order to avoid the payment of the corresponding compensations in case of a strike, which the affected passengers are entitled to by law.  This will apply only in case we find ourselves facing very specific circumstances such as “unpredictable and illegal strikes.” Read more

Royal Decree 563/2017 on Technical Inspection of commercial vehicles, in force on May 20th 2018

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In accordance with the publication in our Blog on June 13th 2017, article: “Royal Decree nº 563/2017 of June 2nd 2017 – Technical Inspection of Commercial Vehicles”, the mentioned Royal Decree will come into force on 20th of May 2018.
The Royal Decree (R.D.) nº 563/2017 incorporates into Spanish law the Directive 2014/47/EU of April 3rd 2014 on technical roadside inspection of commercial vehicles circulating in the EU, whose entry into force suspends the R.D. 957/2002, of September 13th, which regulates the technical roadside inspections of commercial vehicles that circulate on the Spanish territory, and the Order INT/316/2003 of February 13th on technical inspections of commercial vehicles.

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Euro Mediterranean Aviation Agreements

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Three months after the entry into force of the Multilateral Agreement between the European Community and Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Iceland, Macedonia, Norway, Serbia and Montenegro, Romania and Kosovo on the creation of a European Common Aviation Area (ECAA), on March 1st 2018, the EuroMediterranean Aviation Agreement between the European Union and its members on the one hand and the Kingdom of Morocco on the other  came into force; this agreement having been designed in Brussels on December 12th 2006. Read more

Sulphur content of marine fuels, lead to sanction

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Over the last few months we assisted in many sanctioning proceedings initiated by various Spanish Harbour Masters and the Directorate General of the Merchant Navy (DGMN) related to the sulphur content of fuels for maritime use used by ships docked and anchored in Spanish ports.

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