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