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Rights of passengers: practical analysis of the decisions of Spanish Courts of Justice. ANTONIA PANIZA FULLANA Doctor of Law Civil Law Professor at University of Balearic Islands. INTRODUCTION. Different problems which have been resolved by Spanish Courts of Justice.

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rights of passengers practical analysis of the decisions of spanish courts of justice

Rights of passengers: practical analysis of the decisions of Spanish Courts of Justice

ANTONIA PANIZA FULLANA

Doctor of Law

Civil Law Professor at University of Balearic Islands

introduction
INTRODUCTION
  • Different problems which have been resolved by Spanish Courts of Justice.
  • Travel agency and its liability
  • Passenger protection as a consumer:
    • Duty to inform
    • Unfair terms

University of Balearic Islands

introduction3
Introduction

PASSENGER

TRAVEL AGENCY TRAVEL PACKAGE

AIR CARRIER

University of Balearic Islands

the problem and its solution
The problem and its solution

Obligations of the different contracting parties

Different situations

Different liability

University of Balearic Islands

regulation
Regulation
  • Package Travel Regulation (1995, July 6th)
  • Consumer Protection Act (1984, July 19th)
  • Regulation nº 261/2004 of the European Parliament and of the Council of 11 february 2004
  • Article 1101 Civil Code

University of Balearic Islands

air travel as a part of a package holiday
Air travel as a part of a package holiday
  • Art. 3.6 Regulation (EC) Nº 261/2004: “This Regulation shall not affect the rights of passengers under Directive 90/314/EEC. This Regulation shall not apply in cases where a package tour is cancelled for reasons other than cancellation of the flight”

University of Balearic Islands

duty to inform
Duty to inform
  • In general: passengers should be fully informed of their rights
  • Information about visa:
  • SAP of Navarra 2004, november 8th:
    • Only flight/not package travel
    • Travel agency liability: no information about a conecting flight in San Juan, Puerto Rico. The passenger has not visa.
    • But, NOT compensation: no proof the damages

University of Balearic Islands

duty to inform and travel agency
Duty to inform and travel agency
  • SAP of Barcelona 2004, november 25th:
    • Duty to inform was not complete: Passengers need visa to go to Kiev
    • Material damages: the price of the ticket, but
    • No moral damages: no proof

University of Balearic Islands

duty to inform and travel agency9
Duty to inform and travel agency
  • SAP of Baleares 2006, february 10th: package travel
    • Flight Madrid-Marrakech
    • Travel agency has not inform that visa was required
    • Liability: Retailer and consumer (50% comparative negligence)
    • Moral damages: not 2000 euros/900euros

University of Balearic Islands

slide10
SAP of Barcelona 2004, september 28th
  • Airlines computer problem
  • Package travel
  • Airline is responsible of this problem
  • Liability: article 11 Package Travel Act
  • Compensation: the price of the tickets to come back to Barcelona (266,47 euros)

University of Balearic Islands

unfair terms
Unfair terms
  • SAP of Madrid 2005, september 15th: unfair term in the ticket flight: long delays

- Unfair terms: “A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer”. (Art. 3 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts).

- Art.10 bis Consumer Protection Act

University of Balearic Islands

delay of flights
Delay of flights
  • S. J. Mercantil (Bilbao) 2007, march 26th
    • Flight Barcelona-Buenos Aires/but flight conection to Madrid (no information) + delay
    • Liability: Airline: Art. 1101 Civil Code and arts. 25, 26, 27 and 28 of the Consumer Protection Act.
    • Moral damages: 300 euros
  • SAP of Valencia 2006, february 22nd:
    • Flight delayed
    • Package travel
    • Problem: liability retailer/organiser
    • Compensation: 98,50 euros (damages caused by the delay of the flight)

University of Balearic Islands

delay of flights13
Delay of flights
  • S.J. Mercantil Bizkaia 2005, december 7th
  • SAP of Cantabria 2005, june 27th
    • Loss of the flight connection
    • No information about the change of the boarding gate.
    • Airline Liability: Article 1101 Civil Code
    • Material and moral damages

University of Balearic Islands

damage or loss of baggage
Damage or loss of baggage
  • SAP of Valencia 2006, february 27th
    • Loss of baggage (2 and 4 days)
    • Liability: Airline
    • Material damages
    • Moral damages
  • SAP of Tarragona 2006, november 2nd.

University of Balearic Islands

tourism and damages
Tourism and damages
  • STS 2005, October 11th: terrorism attack to Spanish tourist in Egypt:
    • Package travel
    • Liability: Organiser and retailer/ but the situation in this country must be known by the tourist
    • No inevitable accident: art. 1105 Civil Code

University of Balearic Islands

conclusions
CONCLUSIONS
  • DUTY TO INFORM
    • Package Holiday Act: Art. 3 (previous information), 4 (contractual information), 6 (post contractual information).
    • Consumer Protection Act: Art. 13 (general information).
    • Regulation (EC) Nº 261/2004: Art. 14

University of Balearic Islands

conclusions17
CONCLUSIONS
  • UNFAIR TERMS: General Terms Act and Consumer Protection Act.
  • LIABILITY:
    • Art. 25, 26, 27, 28 Consumer Protection Act
    • Art. 11 Package Travel Law: organiser or retailer
    • Art. 1101 Civil Code

University of Balearic Islands

conclusions18
CONCLUSIONS
  • Quantity of compensations:
    • Proof of the damage
    • Material damages
    • Moral damages

University of Balearic Islands

rights of passengers practical analysis of the decisions of spanish courts of justice19

Rights of passengers: practical analysis of the decisions of Spanish Courts of Justice

ANTONIA PANIZA FULLANA

Doctor of Law

Civil Law Professor at University of Balearic Islands

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