I INTRODUCTION

Until 2008, Spanish airports had witnessed annual growth of between 6 per cent and 9 per cent per year, but following the global economic recession, traffic volume has fluctuated. Nonetheless, after five years of unstable development and decline, it seems Spain's airports have bounced back since 2014.

The two most important airports in Spain are Adolfo Suarez airport in Madrid (formerly Madrid–Barajas) and Barcelona–El Prat airport, which account for 21.4 per cent and 18.9 per cent of Spain's passengers respectively. Madrid and Barcelona posted positive results for 2017, recording growth of 5.9 per cent and 7.1 per cent respectively.

The Spanish civil aviation sector is currently regulated, monitored and organised by the authorities listed below.

i The Spanish Civil Aviation Authority

The Spanish Civil Aviation Authority (DGAC) is responsible for the drafting of the general aviation law in Spain. It carries out the negotiation, monitoring and updating of the bilateral treaties between Spain and non-EU countries, and the allocation of traffic rights obtained between the interested non-EU airlines. The DGAC participates in the negotiation of the multilateral treaties between the EU and non-EU countries, and administers and supervises the granting of subsidies in the aviation industry. Finally, the DGAC is also responsible for aviation policy and airport infrastructure strategy.

ii The Civil Aviation Accident and Incident Investigation Commission

The Civil Aviation Accident and Incident Investigation Commission (CIAIAC) is responsible for the investigation of aviation accidents in Spain.

iii The Spanish Aviation Safety and Security Agency

The Spanish Aviation Safety and Security Agency (AESA) is the state body that ensures that civil aviation standards are observed in all aeronautical activity in Spain.

The AESA has competence in the oversight, inspection, planning and management of airport transport, aviation safety, air navigation and airport security.

The AESA also assesses the risks in aviation safety through hazard detection, risk analysis and assessment, and continuous processes for the control and mitigation of risk. The AESA has the legal authority to impose penalties for breaches of civil aviation standards.

iv ENAIRE

The public corporate entity ENAIRE is the company designated by the state to provide air transit services during en-route and approach phases. In 2017, its five control centres and 22 control towers managed over 250 million passengers in 2 million flights, which makes it one of the four largest flight navigation managers in Europe.

ENAIRE controls an airspace of 2.19 million km2, consisting of the Iberian Peninsula (except Portugal), the Canary Islands, the Balearic Islands and part of the North Atlantic, the western Mediterranean and Western Sahara.

ENAIRE was formerly known as Aeropuertos Españoles y Navegación Aérea, created by Article 82 of the 1990 General State Budget Act, Law No. 4/1990 of 29 June. The change of name occurred on 5 July 2014.

II LEGAL FRAMEWORK FOR LIABILITY

i International carriage

The international carriage agreements to which Spain is a party include the Montreal Convention and Regulation (EC) No. 2027/1997 of the Council of 9 October 1997 on air carrier liability in respect of the carriage of passenger and their baggage by air, as amended by Regulation (EC) No. 889/2002.

ii Internal and other non-convention carriage

The national legislation governing liability in respect of non-convention carriage in Spain includes:

  1. the Air Navigation Act (Law No. 48/1960 of 21 July), which establishes a 'contractual' strict liability;
  2. Royal Decree No. 37/2001, which updates the compensation amounts limits specified under the Air Navigation Act; and
  3. the Civil Code (1889), which establishes the 'extra-contractual' responsibility (tort). This responsibility can only be established when the following occurs:
    • an action or omission has caused or produced damage or loss;
    • a personal loss or damage;
    • there is a causality nexus between the action or omission and the personal loss or damage; and
    • negligence on the part of the entity or person that failed to act with the required care in the circumstances.
iii Passenger rights

Spain is a party to the following consumer rights legislation:

  1. Regulation (EC) No. 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No. 295/91;
  2. Regulation (EC) No. 1107/2006, of 5 July 2006, concerning the rights of disabled persons and persons with reduced mobility when travelling by air; and
  3. Royal Legislative Decree No. 1/2007, of 16 November, under which the general law for the defence of the Consumers Act and other complementary regulations are approved. The Consumer Defence Law contains the following basic rights for consumers:
    • protection against any health and security risks that may affect consumers;
    • protection of the consumer's economic and social interests, in particular, against inclusion of abusive clauses in contracts;
    • compensation and remedies for damages and any other losses suffered or sustained;
    • correct information of the goods and services, education and distribution of such information facilitating the knowledge of its adequate use;
    • the right of audience, and participation in any procedure in the elaboration of general regulation that may affect them directly and the representation of their interest to the consumer associations regularly constituted; and
    • adequate protection of the rights through efficient procedures, especially under or during situations of inferiority, subordination or defencelessness.

The offences in the subject of consumers' defence regulated in this Act may be penalised by the competent government administration fines according to the following levels:

  1. for minor offences, up to €3,005.60;
  2. for serious offences, between €3,005.70 and €15,025.30; and
  3. for very serious offences, between €15,025.31 and €601,012.10, and in some cases temporary closure of the business for a period of up to five years.
iv Other legislation

See the European Union chapter of this publication, together with Section VI, below.

III LICENSING OF OPERATIONS

Non-commercial operations together with operations involving state flights, flights with dangerous goods, flights with noise restrictions, air tasks (e.g., aerial photography, fire extinguishing), special flights (e.g., pilot training, measuring terrain) and public service obligations are not subject to the following general rules. All these operations are subject to specific procedures and require special authorisations.

Operations in Spanish airspace will not be authorised for air operators or aircraft included in the list of air carriers subject to an operating ban within the European Community.

i Licensed activities

By virtue of Regulation (EC) No. 1008/2008 of the European Parliament and of the Council on common rules for the operation of air services in the Community, Community air carriers have free access to intra-Community routes, with the only exception being those in which public service obligations have been declared, which are subject to certain restrictions.

See the European Union chapter for more information.

ii Ownership rules

Regulation (EC) No. 1008/2008 applies; see the European Union chapter for more information.

iii Foreign carriers
Scheduled operations

As a general rule, international scheduled air operations are subject to the existence of an air transport convention or agreement in force between Spain (or the European Union) and the other country concerned. Most of these agreements demand that the airlines chosen to operate the air services have been formally designated by the appropriate authority of the corresponding country.

In consequence, airlines wanting to initiate or resume a scheduled air operation to Spain should be previously designated by their aeronautical authority in a written letter sent to the DGAC unless the applicable agreement indicates otherwise.

The accreditation procedure is regulated by Royal Decree No. 1392/2007 of 29 October.

Prior to the beginning of the operations airlines must submit the whole flight programme scheduled for the following International Air Transport Association season.

AESA will then analyse the programme and, if it complies with the applicable agreement or agreements especially with regard to routes, frequencies and capacity, will grant the corresponding authorisation.

Non-scheduled operations

As a general rule, Spain allows non-scheduled air operations by air carriers belonging to a signatory state of the International Civil Aviation Convention (Chicago Convention 1944), provided that the aforementioned state applies reciprocal treatment to Spanish air carriers.

Non-scheduled overflight and technical landings performed by aircraft belonging to contracting states of the International Civil Aviation Convention do not require traffic rights authorisation; however, these operations must be notified to AESA, who may require the submission of documentation such as insurance certificates, airworthiness-related documents, etc.

If operations involve a technical landing, the operator must obtain the authorisation of the airport concerned.

IV SAFETY

See the European Union chapter of this publication.

V INSURANCE

The types and levels of insurance that air carriers and aircraft operators are required to have in place are those outlined in Regulation (EC) No. 785/2004 amended by Regulation (EU) No. 285/2010. AESA requires from the operator a copy of the certificate of insurance evidencing the insurance in place.

For more information see the European Union chapter of this publication.

VI COMPETITION

Competition is regulated by Law No. 15/2007 of 3 July on the Protection of Competition (the Competition Act 15/2007), and in Royal Decree No. 261/2008, which regulates in detail matters described in the Competition Act 15/2007.

The National Markets and Competition Commission (CNMC) is the public agency in charge of preserving, guaranteeing and promoting effective competition in markets at the national level, and procuring consistent application of the Competition Act through cooperation with the competent courts.

The CNMC is a unique institution independent of the government. It exercises its functions on a national scale and comprises two separate departments: the investigations division and the council, which independently perform their respective functions of case investigation and resolution under the coordination of the President of the CNMC. Both bodies are supported by a number of common services.

The Competition Act gives the CNMC responsibility for pursuing investigations and resolving defence of competition proceedings. It also confers on the CNMC arbitration functions, consultative powers and the task of 'promoting competition in the markets'.

In Spain, the procedure is essentially administrative, based on sanctions according to the level of offences declared; however, the offence of plotting to alter the price of goods or services, as well as the criminal responsibility of the company involved (pertinently, following the recent change in the Criminal Code) may in theory be applicable in a case concerning cartels.

The Competition Act and Royal Decree No. 261/2008 replicate the European Community model.

VII WRONGFUL DEATH

In Spain, the level of awards and settlement are established in the official scale table containing the compensation amounts (see Section VIII.iv). The compensation will vary depending on the exact circumstances of the deceased and the affected people (dependants and others).

The exact compensation will depend on the specific circumstances of the deceased. The compensation is broken down into the following three categories: basic personal, particular and financial damage. The sum of the three will result in the amount of compensation awarded.

  1. Basic personal damages: this is calculated based on the damage suffered by the closest family to the deceased, regardless of the number of people affected. The concept of an allegado has recently been introduced (meaning 'close', 'intimate' 'dear', etc.) for people who are not considered directly affected but have lived with the deceased for a period of five years immediately prior to their death and are especially close to the deceased by kinship or other relation of emotional nature. The amounts vary between €10,000 for each allegado and €90,000 for the widow or widower with whom the deceased lived for up to 15 years (an additional €1,000 will be awarded for each subsequent year after 15 years). Each child aged up to 14 years old will be awarded €90,000 and children aged between 14 and 20 years old will be awarded €80,000 (as per the Compensation Table, described in Section VIII.iv).
  2. Particular personal damages: this allows the court to adjust the compensation taking into account the personal circumstances of the person affected. For example, for mental disability (25 per cent to 75 per cent adjustment) or for a person who has lived with the deceased (between €5,000 and €30,000). The court may also award another 25 per cent of the compensation to take into account relevant specific circumstances not contained in the Compensation Table.
  3. Financial damages: there are two types: general damages of €400 without the need to prove the actual damage suffered plus any amount that has been justified and proven (on top of burial costs, etc.); and loss of profit, which is calculated by taking into account the deceased's age, whether the deceased was married, had any children, siblings and grandchildren with disabilities, etc. For example, applying the Compensation Table, the compensation for loss of profit for a 45-year-old widow whose marriage lasted 17 years, taking into account the deceased's annual income of €30,000, would amount to €53,879.

VIII ESTABLISHING LIABILITY AND SETTLEMENT

i Procedure

There are no specific pre-action protocols in Spain and therefore the parties are free to settle claims in their own time prior to or during court procedures.

There are several limitation periods to be considered when initiating court proceedings in Spain and whether the claimant is exercising contractual (strict liability) or extra-contractual responsibility (tort) may determine which limitation period applies.

In most cases the Montreal Convention will be applied and therefore a two-year limitation applies. However, claimants that have missed the two-year time bar have tried (unsuccessfully) to apply the 15-year limitation period established in the Civil Code for contractual responsibility.

The two years established in the Montreal Convention start counting from injury stabilisation. This limitation period is a 'prescription period' (it can be tolled by a formal claim (e.g., by way of fax)) as opposed to a 'caducity period'.

In cases where the flight concerned was domestic, the airlines have tried in the past to apply the six-month (from occurrence) limitation period established in the Air Navigation Act (Article 124) on the basis that this Act was the applicable piece of legislation (under the general rule, specific law overrides common law) regulating contractual responsibility (strict liability). However, in most cases the claimant also exercised the action under extra-contractual responsibility (tort), under which the time limitation is one year. The Supreme Court resolved that the Air Navigation Act did not regulate all the responsibility arising out of an accident and, therefore, when negligence existed, the extra-contractual responsibility arose and the one-year limitation period applied to both contractual and extra-contractual responsibility.

In any case, since the application of the Regulation (EC) No. 889/2002 of the European Parliament and of the Council of 13 May 2002 amending Council Regulation (EC) No. 2027/97 on air carrier liability in the event of accidents, which effectively removed the concept of the domestic flight within the European Union, the Air Navigation Act and its six-month limitation period is now redundant in most cases. The Montreal Convention and its two-year limitation period apply irrespective of whether there is negligence present in the case.

The parties involved

The claimant is allowed to bring to court any party it considers may be responsible for the damage claimed. In most cases the airlines (and sometimes their insurers as co-defendants) are brought to court by the claimant.

The claimant also has the option to exercise a 'direct action' under Article 76 of the Insurance Contract Law, which allows the claimant to make a claim only (and directly) against the airline insurer.

ii Carriers' liability towards passengers and third parties

The limitation established under the Montreal Convention of 113,000 special drawing rights (SDR) applies.

In Spain, the courts have interpreted that up to 113,000 SDR the liability is strict and the exact compensation shall be established according to the Compensation Table.

For compensation of over 113,000 SDR the claimant must prove negligence.

Royal Decree No. 37/2001 of 19 January, which updates the compensatory damages regulated by the Air Navigation Act 48/1960, also establishes limitations for compensation for damage on the ground caused by an aircraft or by any objects falling from an aircraft.

iii Product liability

Passengers' first course of action is usually against the airlines and its insurers since it is the easiest and most effective way to get compensation. However, once the strict liability of the operator has been settled in accordance with the limits mentioned above, claimants may commence proceedings against the manufacturer if they consider they require damages over those limits and there has been negligence on the manufacturer side.

In such a case, the airline or its insurer, or both, may as well issue proceedings against the manufacturer to reclaim the compensation paid to the passenger (if not all, at least a proportion in respect of manufacturer's negligence at the discretion of the court).

iv Compensation

In Spain, the level of awards and settlement are established in the official scale table containing the compensation amounts for death, permanent injuries and temporary injuries arising out of car accidents (the Compensation Table). This table was last updated by Law No. 35/2015 and the amounts are updated every year by the Spanish Directorate General of Insurance and Pension Funds.2

Although the application of the Compensation Table to aviation accidents is not compulsory (nor even in the case of car accidents), its use has become common practice, and it is now applied when settling claims at pre-action stage and also by the court to establish the exact amount of compensation.

In Spain the type of compensable losses are personal damage (including physical and moral damage) and loss of profit.

There is a state-funded social security and medical support scheme in Spain. This entity is able to recover from the airline or its insurer any costs that have been incurred when assisting or giving medical support to a passenger. However, social security cannot recover any benefits awarded for incapacity.

v Criminal liability

In a revolutionary amendment to the Spanish Penal Code, as of 23 December 2010 a company, as distinguished from its employees, can be found criminally liable. Historically, Spanish criminal law did not consider a company as being subject to criminal liability. Although this amendment does not apply to cases of 'imprudent homicide' or 'imprudent injury' (i.e., those most like to arise out of an aviation accident), it demonstrates a tendency towards the broader criminal accountability of companies under Spanish law.

In July 2015 Law No. 1/2015 entered into force in Spain, partially modifying the Spanish Penal Code in relation to the potential liability of legal entities, attributing them with the duty to supervise and monitor any potential crimes that might be committed by their directors, employees, agents and other dependants. Failure to comply with this duty could result in their criminal liability. Depending on the type of offence and its severity, this liability may consist, among other things, of financial fines or even the winding up of the business. For the company to be able to challenge such liability (in case it arises), or at least to ensure that such liability is limited, it must implement a crime prevention policy with the aim to reduce in the risk of crimes being committed within the company.

IX VOLUNTARY REPORTING

In Spain, AESA (see Section I.iii, supra) has the competence to process any incident reports or complaints relating to air transport in general, and safety in particular. AESA set up a specific email address for this purpose: sau.aesa@seguridadaerea.es.

AESA also set up safety.aesa@fomento.es specifically for technical incidents that can compromise air transport safety.

Regulation (EU) No. 376/2014 of the European Parliament and of the Council of 3 April 2014 on the reporting, analysis and follow-up of occurrences in civil aviation was designed to enable the air transport community to access information for the improvement of quality and safety in the air transport service. See the 'European Union' chapter for more information.

In Spain, the information provided via voluntary reporting (or otherwise) will be treated differently depending on the particular incident or case. In accordance with Law No. 21/2003 on Air Navigation Safety (as amended by Law No. 1/2011), as long as there is no indication of gross negligence or wilful misconduct, the information relating to operational safety cannot be used as evidence in court or be disclosed except to ensure the adoption of adequate measures for incident prevention.

The information provided by aeronautic professionals and air transport goods and services suppliers cannot be used against the person providing it, or be incorporated into a commenced procedure, unless it clearly reveals the gross negligence or wilful misconduct in the actions or omissions under investigation or subject matter of the procedure.

Furthermore, Royal Decree No. 995/2013 for the development of the Civil Aviation National Operational Security Programme, prohibits sanctions or coercive measures against air transport goods or services suppliers for voluntary reporting of their own conduct against operational security unless (1) it clearly reveals gross negligence or wilful misconduct in such conduct, or (2) it shows gross negligence as a result of the repetition of the conduct (or both).

X THE YEAR IN REVIEW

i Criminalisation of aviation accidents – the Spanair accident

The Spanair accident of 20 August 2008 demonstrates that criminal liability may arise out of an aviation accident under Spanish law. The Spanish Penal Code provides for the following two offences that can be relevant in the aftermath of an aviation accident: 'imprudent homicide' if a passenger died; and 'imprudent injury' if a passenger was injured. These two offences are punishable by imprisonment of up to four years and three years respectively. Moreover, the imprisonment for 'imprudent injury' can be increased to 12 years if the passenger suffered injury to a principal organ, lost a limb, lost use of any of the senses (e.g., sight), suffered a serious deformity, suffered impotence, or developed a serious physical or psychiatric illness.

In the Spanair case the public prosecutor formally brought charges against an engineer, a technician and Spanair's head of maintenance at Barajas Airport. Although it was not the case in the Spanair accident, criminal charges can also be brought against employees who work in the upper levels of an airline's management. The Spanish Penal Code provides for a company's administrators (i.e., board of directors, managing directors and other directors) to be held criminally liable if it is proved that (1) they knew of the act or omission that caused the damage; and (2) they had control over that act or omission in the sense of being capable of interrupting or avoiding it.

ii Looking into the Spanair case

In the 2014 Spain chapter, a summary of the criminal proceedings of the Spanair case was provided and it was reported that the Provincial Court of Madrid issued its decision on 19 September 2012, resolving that the two engineers who attended the aircraft prior to departure were not responsible for the accident and therefore no further criminal action would be taken against them.

The final report from the CIAIAC established the pilot's distraction as the main cause of the accident.

However, in April 2018 the Spanish parliament approved a proposal to establish a commission to further investigate the causes of the Spanair accident.

iii Spain's accession to the Aircraft Protocol of the Cape Town Convention

Spain's accession to the Aircraft Protocol of the the Convention on International Interests in Mobile Equipment, 16 November 2001 (the Cape Town Convention) took place on 27 November 2015 and was published in the Spanish Official Gazette on 1 February 2016. The Aircraft Protocol entered into force in Spain on 1 March 2016.

The ultimate purpose of the Cape Town Convention system is to create an international legal framework for creating, registering, enforcing and determining the priority of security and other interests in aircraft equipment.

However, it seems that the registration process envisaged by Spain conflicts with the registration process provided by the Cape Town Convention. Spanish Royal Decree of 22 May 2015 (Royal Decree No. 384/2015) setting out the legal framework for the implementation of the Protocol in Spain seems to first require a national registration allowing the transmission of the relevant information to the Mobile Equipment Registry. This point seems incompatible with the Cape Town Convention as it requires a prior national registration for the transmission of the relevant information to the International Registry. A working group was established to discuss the necessary amendments that need to be made to the Spanish legal system in order to give the Cape Town Convention its full effect and allow for a proper functioning of the system.

iv Dispute over Gibraltar airport

Gibraltar, a British overseas territory, near the southernmost tip of the Iberian Peninsula, is the subject of a disputed claim by Spain on its sovereignty. The Spanish Crown formally ceded the territory in perpetuity to the British Crown in 1713, under Article X of the Treaty of Utrecht.

The long-time dispute between Britain and Spain not only includes sovereignty over the territory that includes Gibraltar's airport but also if EU legislation on aviation should apply to Gibraltar's airport. The latter has led EU transport ministers to seek intervention on both these matters.

Spain claims that the matter of Gibraltar's airport is different to that of the generic dispute concerning Gibraltar and therefore alleges that the airport is not included in the treaty ceding Gibraltar to Britain three centuries ago. This would lead to the fact that the airport has always been Spanish territory, whereas Britain claims on the contrary that the airport, as part of Gibraltar, is covered by the treaty.

Spain and the UK are currently discussing sharing the use of the airport by moving a terminal into Spanish soil. A resolution is expected before October of this year as talks between the British officials and the Spanish officials has been said to be progressing.

After the result of the UK referendum to leave the European Union (23 June 2016) the future of Gibraltar and its airport will be part of the Brexit negotiations and the eventual agreement between the EU and the UK. The UK's ambition to preserve access to Europe's skies can be negotiated and set up by retaining membership of the European Common Aviation Area or seeking a bilateral 'open skies' agreement with the EU; both require unanimous support from all EU Member States. Spain has the right to veto any decision or agreement over Gibraltar and the EU. The Spanish offer includes co-sovereignty, Gibraltar's own fiscal regime but compatible with the EU's and dismantling the gate between Gibraltar and Spain.

XI OUTLOOK

As mentioned in the introduction, Spain has experienced passenger growth, and this is expected to continue in 2018, notably because of the continuing growth in international tourism. There are good prospects for 2018 and the outlook for air traffic in Spanish airports is very positive. ENAIRE has now experienced 41 months of air traffic growth with 2 million flights in 2017, and projections of 4 per cent annual increase till 2020.


Footnotes

1 Diego Garrigues is a partner at The Air Law Firm LLP.

2 The compensation amounts can be found in http://www.dgsfp.mineco.es.