SPAIN Trends and Developments Contributed by: Alfonso López-Ibor, Pablo Henriquez de Luna and Pedro Echeguren, Lopez-Ibor DPM
Conversely, this text can also serve as a refer- ence for attorneys specialised in the judicial defence of airlines, offering them a set of guide- lines on how to easily detect lawsuits filed before incompetent courts and, thus, enabling them to successfully mount a challenge of jurisdiction to terminate the dispute before it has truly started. Basic Norms Governing the Rights of Passengers Scope of the article The rights of passengers aggrieved by airline- related issues are set out in two basic norms: • At European level, Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assis- tance to passengers in the event of denied boarding and of cancellation or long delay of flights (hereinafter, the “EU Regulation”); and • At international level, the Montreal Conven- tion of 28 May 1999 (hereinafter, the CM). While the former law, as its title suggests, only refers to the rights arising from “denied board- ing”, “cancellation” and “long delay of flights”, the CM encompasses a more comprehensive set of contingencies, as, aside from denied board- ings, delays and cancellations, it also addresses the consequences derived from losses of lug- gage and purely personal damages (death and physical injuries). The substantive and material aspects of these norms (ie, an examination and comparison of the rights afforded to passengers pursuant to their respective provisions) will not be examined here, since this article only covers a purely procedural aspect (the correct determination of the coun- tries with the internationally competent courts for bringing a legal action).
Moreover, this article will only examine the inter- national jurisdiction, in the sense of determin- ing the courts of which country are competent. Therefore, once the former question has been settled, the determination of the internal com- petence (within the internationally competent country, the courts of which city, circumscription or territory are competent) is an issue that must be studied in view of the internal laws of that country and whose study exceeds the purposes of this analysis. Scope of application of the EU Regulation The EU Regulation applies to all flights depart- ing from any EU member state, as well as from Iceland, Norway and Switzerland, which, despite not being part of the EU, have also adhered to some of its norms, by virtue of the Lugano Con- vention of 30 October 2007. It also applies to flights departing from third countries and destinations in the EU, Iceland, Norway and Switzerland, provided that the air- line is domiciled in the EU. For instance, a flight departing from Spain and headed to the United States would be subject to the provisions of the EU Regulation in any sce- nario regardless of the airline’s place of domicile, while the inverse journey (United States-Spain) would only be subject to it if the airline belonged to an EU member state or one of the three addi - tional countries adhered to the EU provisions. Scope of application of the CM The provisions of the CM apply to direct flights (without stopovers) between two different coun- tries, provided that both nations have adhered to this international treaty. It also applies to inter- nal flights between one country that has ratified the CM if the flight has a stopover in another country, regardless of whether or not this lat-
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