Moreover, AESA receives passenger complaints regarding alleged violations of the rights recognised in these regulations58. Prior to this, passengers must have first filed a claim with the airline and/or airport operator responsible for the incident. After one month without receiving a response or receiving an unsatisfactory reply, the passenger can initiate the process to submit a complaint to AESA at no cost, either by registration or via its website59. In the procedure, the Agency assesses whether there has been a breach of the regulation, gathering the necessary additional information from the airline and/or airport operator or, if necessary, from other entities. Within 90 days of receiving the complaint, AESA issues a report outlining the actions taken and the rights the passenger is entitled to in relation to the incident60. However, even if a violation of one of the rights recognised in the regulations is found, the claimant passenger does not receive any compensation, given AESA’s role of general supervision61. As in most member states62, the report issued by AESA is not legally binding. Therefore, even if the report is favourable to the passenger, the airline and/or airport operator may choose not to comply with it63. In fact, AESA may initiate 58 https://www.seguridadaerea.gob.es/es/ambitos/derechos-de-los-pasajeros/procedimiento-para-reclamar 59 This latter possibility was implemented in 2018, which undoubtedly made the submission of complaints easier. In the year before its introduction, 2017, 15,324 complaints were submitted, while in 2018, this number increased to 33,707. 60 Furthermore, in cases where the responsibility for resolving the matter lies with another Member State, AESA will forward the complaint to the relevant competent authority, if the passenger wishes. 61 The CJEU, in its judgment of 17 March 2016, joined cases C-145/15 and C-146/15, K. Ruijssenaars and others and Staatssecretaris van Infrastructuur en Milieu, concluded that, under the Regulation, the bodies responsible for enforcement are not required to take coercive measures against air carriers to compel them to pay the compensation provided for in Regulation No. 261/2004 in specific cases, as the sanctioning function under Article 16.3 of the Regulation is limited to measures taken in response to non-compliance detected by the body in its supervisory activity under Article 16.1 of the Regulation. However, the CJEU also clarified that the Regulation does not prevent Member States from adopting rules that require the enforcement body to take action in response to specific complaints in the absence of an alternative dispute resolution body or the response of such a body, if it exists. Similarly, the CJEU ruling of 29 September 2022, case C-597/20, Polskie Linie Lotnicze “LOT” S.A. and Budapest Főváros Kormányhivatala, concluded that Member States can empower the national enforcement body to compel an air carrier to pay compensation due to passengers under Regulation No. 261/2004 when an individual passenger’s complaint has been submitted to that body, provided that the affected passenger and air carrier have the possibility of resorting to judicial proceedings. For a detailed analysis of the CJEU judgment of 17 March 2016, refer to MARCO ARCALÁ, L. A., “Gran retraso en el transporte aéreo y acceso a la justicia de los consumidores en la UE (Reflexiones a vuela pluma sobre las SS. TJUE C-145 y 146/15, de 17 de marzo de 2016)”, in GUERRERO LEBRÓN, M.ª J. and PEINADO GRACIA, J. I. (dirs.) and CONTRERAS DE LA ROSA, I. (coord.), El derecho aéreo entre lo público y lo privado: aeropuertos, acceso al mercado, drones y responsabilidad, UNIA, Sevilla, 2017, pp. 322-351. 62 Thus, “Study on the current level of protection…”, op. cit., pp. 132-133. 63 AESA reports in its annual reports that it is common for airlines to comply with their contents or even address passengers’ requests before the conclusion of the report –for example, “Informe Público anual 2022 en Derechos de los pasajeros”, p. 13, which is the latest available report at the time of closing this work. In fact, to reinforce this statement, it points out that in 2022, airlines complied with the majority of the reports issued by the Agency – 67.3%, although to varying degrees: 58.1% fully adopted AESA’s report, and 9.2% only partially. Furthermore, in 7.1% of 44 ARÁNZAZU PÉREZ MORIONES
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