Burden of proof in consumer claims

Introduction
Decision
Spanish legislation and case law on compensation limit and burden of proof

Introduction

On 9 July 2020 the European Court of Justice (ECJ) ruled on a request for a preliminary ruling from Barcelona Commercial Court 9. The case concerned the interpretation of Articles 17(2) and 22(1) of the Montreal Convention. In particular, the question referred by the Spanish court essentially covered the following two aspects:

• Whether the sum of 1,131 special drawing rights (SDRs) referred to in Article 22(2) of the Montreal Convention is a maximum limit on the compensation to be awarded to passengers whose baggage has been lost or whether it is a fixed sum to be awarded automatically by the court in any event.
• The second issue concerned the question of who bears the burden of proof and the standard of proof that the court can demand from a passenger where it is required to establish the damage suffered as a result of their baggage being lost.

Decision

In line with the Montreal Convention, the ECJ established the principle that the courts should fix the amount of compensation, depending on the damages effectively suffered by the passenger, subject to a limit of 1,131 SDRs. In addition, the ECJ found that the national courts should determine the amount of compensation to be awarded to passengers for the material and non-material damage suffered as a result of the loss of baggage.

While it is incumbent on passengers to provide the necessary evidence to establish damage suffered, the national courts must satisfy themselves that the applicable national rules do not make it impossible or excessively difficult to exercise the right to compensation provided for by Articles 17(2) and 22(2) of the Montreal Convention (ie, the principle of effectiveness). However, the ECJ confirmed the position that claiming passengers must provide the relevant evidence to claim for damages.

Spanish legislation and case law on compensation limit and burden of proof

The ECJ decision asserted the principle of effectiveness and set the precedent that the national courts must be reasonable when requiring full and complete evidence regarding the effective damages alleged by passengers. In any case, this principle was already being followed by the Spanish courts before the ECJ decision in compliance with certain domestic Spanish legal provisions (Article 217(7) of the Spanish Procedure Act). This provision establishes that when assessing the level of evidence to be borne by each party, the courts must take into account the ease or difficulty faced by the relevant party to provide such evidence (ie, the principle of evidence facility).

However, it is of upmost importance that the new ECJ decision confirmed that Articles 17(2) and 22(2) of the Montreal Convention do not establish an automatic sum that is payable when a bag is lost in the context of commercial air transport. The ECJ made a relevant decision on this controversial question that had been under discussion in certain lower-instance Spanish courts. While the higher courts had no doubts about this issue, some lower courts still held a different position; given the relatively small amounts involved, in many cases it was impossible to appeal lower court decisions.

In particular, the ECJ confirmed the view that was defended in several recent Spanish cases, with specific attention to the background of each case:

• On 26 March 2020 the Commercial Court No 10 of Barcelona ruled that a passenger had provided no evidence about the valuation of their lost luggage which was never recovered and had not indicated what the baggage contained. Therefore, the court did not grant the amount claimed by the passenger.
• On 14 February 2020 a Commercial Court No 2 of Madrid decision reduced the amount claimed by a passenger due to the lack of proof of the pre-existence of the missing items and their value despite the fact that baggage was lost on an outbound journey.
• On 29 July 2020 the Commercial Court No 7 of Madrid rejected a claim filed by a passenger as he had not justified the expenses that the lack of recovery of the baggage may have caused.
• On 17 May 2019 the Commercial Court No 3 of Palma de Mallorca issued a decision which found that passengers must prove the damages caused by airlines in order to have access to a full claim under Article 22(2) of the Montreal Convention.

The ECJ's decision confirms the requirements established by the Spanish courts to grant specific compensations for lost baggage and places the attention on the assessment of each particular case and the actual evidence submitted by passengers.

For further information on this topic please contact Belén Devesa de Travy at Augusta Abogados by telephone (+34 933 621 620) or email (b.devesa@augustaabogados.com). The Augusta Abogados website can be accessed at www.augustaabogados.com.