SPAIN Trends and Developments Contributed by: Alfonso López-Ibor, Pablo Henriquez de Luna and Pedro Echeguren, Lopez-Ibor DPM
• the country has ratified the treaty; and • the airline carries out its commercial activities (either directly or through an association with a partner) in that country. Jurisdiction for the examination of disputes based on the EU Regulation against airlines based in the EU, Switzerland, Norway or Iceland – regulation at EU level As opposed to the CM, the EU Regulation does not contain a specific set of rules on the juris- diction for the examination of disputes arising from it. As a result, the determination of this jurisdic- tion must be made according to the relevant EU norm on this matter, Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judg- ments in civil and commercial matters (recast), commonly known and hereinafter referred to as “Brussels I Recast”. Pursuant to this latter norm, the situation will vary depending on whether or not the airline is domiciled in a EU member state (or Switzerland, Norway and Iceland) or a third country. It the claim is directed against an EU, Swiss, Norwegian or Icelandic airline, the passenger should either bring the action before the courts of the following. • The country of the airline’s domicile, since, as a general rule, pursuant to Brussels I Recast, natural and legal persons are always subject to the courts of their place of domicile. • The place of performance of the obliga- tion. Since the “obligation” would consist of transporting the passenger, its places of “performance” would be the countries of both
departure and arrival, thereby enabling the passenger to bring the action in either place. For the purposes of performance, if the flight has a stopover in a third country, this latter place is not to be considered internationally competent. While Brussels I Recast provides consumers with the possibility of suing companies before the countries of the former’s places of domicile, this is expressly excluded in transport contracts, meaning that, much like the CM, the passenger’s country is not a relevant criterion. For instance, if a German passenger were to take a flight operated by a French airline between Austria and Portugal, any dispute subject to the EU Regulation should be settled before the courts of either France (the airline’s country of domicile), Austria (the point of departure) or Por- tugal (the point of arrival), and to the exclusion of those of Germany (the passenger’s country). Jurisdiction for the examination of disputes based on the EU Regulation against airlines based outside of the EU, Switzerland, Norway or Iceland – regulation at Spanish national level (I) Alternatively, if the airline was not based in either the EU, Switzerland, Norway or Iceland, Brus- sels I Recast does not set out rules of jurisdic- tion, referring instead to the internal national law of each member state. As a result, if a passenger were to file an action against, for example, a Mexican airline, on account of an incident which occurred on a flight subject to the EU Regulation (with its point of departure in the EU, Switzerland, Norway or Iceland), the determination of the internationally competent courts would be made according not
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