for the average passenger, typically a consumer, due to the “barriers” to accessing justice and the tactics of delay employed by airlines. This explains the rise of companies specialising in mass claims108, whose practices can sometimes be questionable. On the other hand, the effectiveness of complaints filed with AESA, as the body responsible for enforcing Regulations (EC) No. 261/2004 and (EC) No. 1107/2006, is extremely limited. In fact, in many cases, AESA’s report will only be useful if the passenger subsequently takes the matter to court. At first glance, the regulation of an alternative dispute resolution procedure for air transport users appears to be an optimal solution to ensure that passengers are adequately protected. The inherent characteristics of all alternative dispute resolution methods -speed, cost-free nature and simplicity- facilitate the submission of complaints by passengers and, consequently, the protection of their rights. However, a careful analysis of Order TMA/201/2022 requires us to temper this statement. First, due to the limitations on the objective and geographical scope of application, which result in significant exclusions in practice. Second, due to the long period allowed for submitting a prior complaint to the airline or airport operator, which benefits neither the operators nor the passengers. Finally, due to the limited effectiveness of AESA’s decisions, which are non-binding for airport operators and merely serve as recommendations or suggestions. Moreover, the delay in AESA’s accreditation as an authorised body for resolving air transport user disputes unnecessarily delayed the practical implementation of this procedure until June 2023, when its final regulation had already experienced significant delays. That said, regardless of the above observations, it must be acknowledged that a deeper issue lies at the heart of air passenger rights protection: the urgent need to revise Regulation (EC) No. 261/2004109. On the one hand, because the legal framework it contains has proven to be profoundly ineffective in practice. On the other hand, due to the need to rebalance the tension between air carriers and passengers in the event of certain disruptions. Ultimately, as previously noted, the high level of protection of passengers requires adequate regulation of their rights -and the obligations of airlines and airport operators- and of suitable complaint and sanction procedures. Both elements are so closely linked that deficiencies in one affect the other and prevent the achievement of the desired 108 On this matter, see BELMONTE DE LA VILLA, P., “La interposición por compañías especializadas de acciones de reclamación de derechos de pasajeros aéreos”, RDM, No 311 -electronic version-. 109 Thus, we note in PÉREZ MORIONES, A., “Transporte aéreo y estabilidad económica en el comercio internacional”, in ÁLVAREZ RUBIO, J. J., IRIARTE ÁNGEL, J. L. and BELINTXÓN MARTÍN, U. (dirs), Representación aduanera y comercio internacional en el siglo XXI, Thomson Reuters-Civitas, Cizur Menor, 2022, pp. 621-632. 59 THE IMPLEMENTATION OF ADR IN PASSENGERS AIR TRANSPORT
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