Another issue is our doubts regarding the appropriateness of concentrating both functions in a single body92. Furthermore, the mandatory participation and binding nature of the procedure would have found a natural place in the wording of Article 9 of Law 7/201793. Similarly, the General Council of the Judiciary proposed establishing prior complaints to AESA as a prerequisite for the admissibility of judicial claims94. Considered in isolation, the lawfulness of this measure raises no doubts. Thus, the CJEU, in its ruling of 14 June 201795, concluded that the requirement for a national law to make it obligatory to use an extrajudicial mediation procedure before initiating judicial proceedings does not undermine the achievement of the objectives of Directive 2013/11 of the European Parliament and Council, of 21 May 2013, on alternative dispute resolution for consumer disputes96, provided that the requirement is compatible with the right of access to the judicial system. However, the binding nature for the parties -also proposed by the General Council- would prevent this requirement from being satisfied. Indeed, among the conditions that the procedure must meet to be compatible with the right of access to the judicial system, the CJEU includes the condition that it does not lead to a binding decision for the parties97. Therefore, the prior submission of a complaint to AESA as a condition for admissibility would only be acceptable if the procedure were non-binding. The implementation of both measures would have been impractical. 2.4. Alternative Dispute Resolution Procedure As previously mentioned, if the passenger is dissatisfied with the outcome of their prior complaint with the airline or airport operator, or if there is 92 See above. 93 “Neither party shall be obliged to participate in proceedings before a consumer alternative dispute resolution entity, unless otherwise established by a specific regulation. In no case shall the binding decision that ends a mandatory participation procedure prevent the parties from accessing the judicial route.” 94 See “Medidas organizativas y procesales para el plan de choque…”, cit., pp. 181-186. 95 Thus, CJEU Judgment of 14 June 2017, Case C-75/16, Livio Menini, Maria Antonia Rampanelli and Banco Popolare Società Cooperativa, which adopts one of the conclusions of the Advocate General, who supported the application of the reasoning followed by the CJEU in its judgment of 18 March 2010, joined Cases C-317/08, C-318/08, C-319/08 and C-320/08, Rosalba Alassini and Telecom Italia SpA (Case C-317/08), Filomena Califano and Wind SpA (Case C-318/08), Lucia Anna Giorgia Iacono and Telecom Italia SpA (Case C-319/08), and Multiservice Srl and Telecom Italia SpA (Case C-320/08). On this ruling, see our observations in PÉREZ MORIONES, A., “Mediación obligatoria previa al ejercicio de la acción judicial en litigios promovidos por consumidores: a propósito de la STJUE de 14 de junio de 2017 (Asunto C-75/16)”, Diario La Ley, nº 9076, 2017. 96 OJ L 165/63, 18 June 2013. 97 Also, the procedure: i) must not cause a significant delay for the exercise of a judicial action; ii) must interrupt the prescription of the corresponding rights; iii) must not incur significant costs or cause minimal costs for the parties; iv) must not impose electronic means as the only way to access the procedure; and v) must allow the adoption of provisional measures in exceptional cases where urgency demands. 54 ARÁNZAZU PÉREZ MORIONES
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