The correct interpretation of moral harm in air delays: Not everything goes

The trend of years ago in lawsuits brought by consumers or mass claims offices that proliferate and multiply more and more rapidly against airlines for delays and cancellations, has been, since the famous Judgment of the First Civil Chamber of the Supreme Court, of May 31, 2000 (Judgment No. 533/2000), too generalist in terms of the granting of economic amounts without the need for proof of the moral damage actually caused by the passenger while waiting. This trend, as occurred with which he understood that the application of the automatic compensation established by European Regulation 261/2004 (by application of the Judgment of the High Court of Justice of the European Union) with respect to its analogy with the Montreal Convention of 1999, has also changed. From specialized professional firms such as Tourism & Law, it is being possible to change the incorrect interpretative treatment by which no proof of damage was required to automatically request amounts from airlines in the face of any demand and almost any claim for compensation. In fact, and once it has also been clarified that the Special Drawing Rights of the Montreal Convention include both material and moral damage, it is being achieved, step by step and Judgment by Judgment, to point out to Judges and Courts that, with regard to the request for moral damages due to delays or cancellations, not everything goes. The reasons for the change are multiple, and there must even be the error factor in the mass drafting of lawsuits by firms dedicated to consumer complaints against airlines, it is true, but of course that The individualized, slow and thorough treatment of each specific case has a great influence, since the circumstances surrounding the subjects (passenger and airline) and the specific facts (waiting time, attention and information provided, etc.) are decisive for having been able to make it clear to the courts that, without being able to rely on minor case law emanating from the Provincial Courts due to the small amount of the lawsuits, the rulings of the Judgments must be properly founded, which involves correctly interpreting the rules applicable to each case, the content of the Judgments applicable to each case, and of course the concurrent factual circumstances in each case. The results of Tourism & Law in defense of airlines are on this path, obtaining acquittals based on the lack of sufficient proof of the lawsuit in respect of the moral harm allegedly suffered, as well as it has even been possible to prove that the failure of an engine was alien to the airline's own activity. Recently, another step has been taken in the Commercial Courts of Madrid (Judgment No. 353/2017, issued by the Commercial Court No. 9 of Madrid on November 8, 2017), which establishes the following:“the truth is that the situation narrated in the lawsuit does not make it possible to show how it is intended that the contractual breach of the complainant entity would cause the actors harm that could be compensated as moral harm as stated in the previous paragraph, which determines that the lawsuit must be dismissed.”The fact is that, in fact, the Supreme Court Judgment of 2000, used by all mass claimants against airlines, does not establish, much less, that a delay of more than three hours is susceptible to economic claims for moral harm without the need for any accreditation. What the Supreme Court ruling established, in reality, was the concurrence of three requirements: a) that the delay was unjustifiable, which is not the same as due to “extraordinary circumstances”; b) that the delay was significant (10 hours in the case of famous Judgment); and that the delay affected the passenger's mental sphere beyond mere annoyance, anger or discomfort, for which there must be “concurrent circumstances” in each case. The Supreme Court ruling of 2000 analyzed the concurrence of the fact that it was a wedding trip, the unilateral and unjust decision of the airline to delay the flight, the proven loss of a working day and the lack of assistance and explanation on the part of the airline. Thus, it determined that, together with the duration of the delay, the moral damage or condition of the delay in the passenger's mental sphere was notorious and without the need for documentary proof or by any other means of the cause-effect between the delay and the damage.The recent Judgment of the Madrid Commercial Court, together with other previous judgments in other venues such as Palma de Mallorca, Barcelona, Logroño or Toledo, correctly interprets the Supreme Court Judgment and applies it to a delay of four hours in which, since the Montreal Convention is applicable in the case of a non-EU airline and departing the flight from a non-EU country, not only can the automatic compensation of European Regulation 261 not be applied by analogy, but it also assesses the “importance” of the delay and the “concurrent circumstances”, considering that the burden of proof in a delay of that duration is necessary to be able to prove the origin of the sums requested for this concept of moral harm. Trends are changing, it is true, and it is not a question of diminishing consumer rights, much less, but of applying rules to specific facts and prevent abuses of law.

Fernando de Llano (T&l Attorney)