for those who have adhered. Firstly, the voluntary acceptance of the procedure for non-adhering airport operators may render the theoretical possibility for passengers to resort to alternative dispute resolution against them meaningless. Secondly, the result of the procedure is non-binding for airport operators in any case, even if they have adhered to the procedure -remember, for them, the acceptance of the procedure is mandatory-. In view of this, the content of the decision issued by AESA resolving a complaint filed by a passenger against an airport operator will merely constitute a recommendation or suggestion. Thus, the effectiveness of AESA’s actions as an entity for alternative dispute resolution between passengers and airport operators does not differ greatly from its role as the body responsible for enforcing EU regulations on air passenger rights. In our opinion, the procedure should be mandatory and binding for both airlines and airport operators -ultimately, for those businesses that can be the subject of claims-. Not only is there seemingly no reason to justify the different treatment of airlines and airport operators87, but it is also essential if a truly effective procedure is to be implemented. Certainly, the number of complaints arising from breaches of this Regulation is not significant88. However, the scope of its subjective application is highly relevant: people with disabilities or reduced mobility, i.e., vulnerable individuals whose rights have been infringed. Moreover, during the crisis caused by the state of alarm in 2020, the General Council of the Judiciary approved a series of organisational and procedural measures as a “shock plan” for the Administration of Justice. Among them was the proposal that the alternative dispute resolution procedure for monetary claims under Regulation No. 261/2004 be mandatory and binding for both parties, subject to appeal before the commercial courts89. In defence of this measure, the Council argued, among other reasons, that such matters are of low legal complexity, as specific regulations determine when the carrier must respond and even the amount of compensation90. While we do not fully agree with this statement91, AESA is precisely the specialised body in this area, as it is responsible for enforcing EU regulations on the protection of air transport users. 87 According to PÉREZ DAUDÍ, V., “La imposición de los ADR ope legis y el derecho a la tutela judicial efec-� tiva”, InDret, 2019, nº 2, p. 33, “The legislator gives no reason for this unequal treatment […] Therefore, in the absence of justification, I believe it is contrary to Article 14 of the Spanish Constitution and, consequently, unconstitutional”. 88 Thus, in 2019, there were 28 claims out of a total of 34,386; in 2020, 11 claims out of a total of 54,273; and in 2021, 3 claims out of a total of 20,145. 89 See “Medidas organizativas y procesales para el plan de choque…”, cit., pp. 243-249. 90 Ibidem, p. 217. 91 The intense activity of the CJEU due to the interpretative issues caused by the wording of Regulation No. 261/2004 cannot be overlooked, as we referred to earlier. 53 THE IMPLEMENTATION OF ADR IN PASSENGERS AIR TRANSPORT
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