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

1. 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

2. 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

3. Introduction PASSENGER TRAVEL AGENCY TRAVEL PACKAGE AIR CARRIER University of Balearic Islands

4. The problem and its solution Obligations of the different contracting parties Different situations Different liability University of Balearic Islands

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. CONCLUSIONS • Quantity of compensations: • Proof of the damage • Material damages • Moral damages University of Balearic Islands

19. 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