SPAIN Trends and Developments Contributed by: Alfonso López-Ibor, Pablo Henriquez de Luna and Pedro Echeguren, Lopez-Ibor DPM
to Brussels I Recast, but rather to Spanish inter- nal laws. The Spanish law detailing the rules of jurisdic- tion is Organic Law 6/1985, dated 1 July, on the Judiciary (hereinafter, OLJ), which provides for the possibility of suing in Spain in the following cases. • Regardless of the parties’ nationalities, when the obligation’s place of fulfilment was Spain. As a result, all flights not subject to the CM and the EU Regulation whose point of depar- ture and/or return was a Spanish airport, would be subject to the jurisdiction of Spain. • If the claimant was a consumer, it would be entitled to bring the litigation in Spain provid- ed that it was their country of residence (not necessarily of nationality). For instance, in the above-mentioned example of a flight operated by a French airline between Austria and Portugal (therefore, subject to the EU Regulation), the determination of the com- petence would be made according to Brussels I Recast, as France (the country of defendant’s domicile) is an EU member state. Even if the aggrieved passenger resided in Spain, they would not be entitled to sue the air- line in Spain, for the reasons already detailed in the previous section as Brussels I Recast (bar- ring the jurisdiction of the consumer’s place of residence) prevails over the OLJ (enabling it). However, if the flight was not operated by a French airline, but, for example, by a company based in Brazil (therefore, not a EU member state), the determination of the jurisdiction would not be made in view of Brussels I Recast, but in light of the Spanish OLJ, which would allow
the passenger to litigate in Spain so long as this country was their place of residence. Jurisdiction of Spanish courts for the examination of disputes on account of international flights based on neither the EU Regulation, nor the CM – regulation at Spanish national level (II) A general principle of Spanish law is the primacy of international and EU law over internal national law. In practice, this entails: • that any eventual contradiction between external and internal norms must be solved in the sense of establishing the preference of the international and EU laws; and • that Spanish laws will only apply to those cases not expressly regulated by external laws, in so far as they are not inconsistent with them. Regarding international flights, the Spanish internal rules of jurisdiction set out in the OLJ and briefly outlined above will only apply in two very specific instances, as set out below. • When an international or EU law expressly refers to the internal regulation of a country. In airline-related litigation, the only instance where this occurs is in the case explained in the previous section, in flights subject to the European Regulation but operated by an airline not belonging to the EU, Switzerland, Norway or Iceland, where Brussels I Recast refers to countries’ internal rules. • In international flights not falling under the EU Regulation or the CM. For instance, in the event of a flight between Iraq and Venezuela (to name two countries that are not subject to the applicability of either the EU Regulation/Brussels I Recast or the CM), from
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