SPAIN Trends and Developments Contributed by: Alfonso López-Ibor, Pablo Henriquez de Luna and Pedro Echeguren, Lopez-Ibor DPM
the standpoint of the Spanish legal system, the determination of the international jurisdiction would be subsidiarily governed by the OLJ. Consequently, by virtue of this law, in controver- sies derived from international flights between EU non-member states (other than Norway, Switzerland and Iceland), Spanish courts will have jurisdiction to examine if either of these prerequisites is met: • the airline was domiciled in Spain; or • the affected passenger had their residence in Spain. In this last example, therefore, the passenger could sue the airline before the courts of Spain if either (i) the latter had their domicile in this coun- try or (ii) the former had their residence there. The possibility of submission in airline-related litigation The term submission refers to the possibility of the parties coming to an agreement (either, at the signing of the contract or at a subsequent moment) regarding the place for the settlement of the judicial disputes arising between them, thereby waiving the jurisdiction of the courts that would ordinarily correspond according to the law. The submission can be either explicit (expressly agreed to by the parties, usually in the Terms and Conditions accepted when booking the flight) or tacit, in the event the claim is filed before the Courts of a country a priori lacking international jurisdiction and the airline appeared before such Court without filing a challenge, and therefore tacitly accepting the submission to the Courts of the otherwise incompetent country.
The extent of the validity of clauses of submis- sion to the Courts of a certain country in airline- related disputes is contingent on the nature and legal grounds of the action filed: • At international level, the provisions of the above-mentioned Section 33 of the CM regarding the jurisdiction are mandatory and imperative, meaning that the submission to the courts of any countries other than the point of arrival, the airline’s domicile or main headquarters or office where the contract was entered to, will be null and void. • At EU level, pursuant to Brussels I Recast, clauses of submission are valid if they are expressly agreed in writing between the airline and the passenger and are compliant with the internal provisions of each member state, meaning that the situation must be examined case by case, depending on the legal system of the country where the lawsuit is taking place. In the case of Spain, its internal legislation regarding consumer protection prohibits claus- es of submission to the courts of countries that do not correspond either with (i) the consumer’s domicile or (ii) the fulfilment of the obligation (points of departure or arrival of the flight). For instance, if a Spanish passenger booked a flight between Germany and Ireland with a French airline, it would be subject to the EU Regulation and, pursuant to Brussels I Recast, the jurisdiction for disputes arising from it would correspond to the courts of Ireland, Germany a France. From Spain’s legal perspective, any provision establishing a clause of submission to any country other than Germany and France (already legally predetermined) or Spain (not legally predetermined, but permissible accord-
1323 CHAMBERS.COM
Powered by FlippingBook