Italian Transport Regulation Authority (hereinafter Art) introduced, for air transport, a mandatory ADR (Alternative Dispute Resolution) procedure to be carried out before starting a dispute on Reg. 261/2004 and the Montreal Convention. All with effect from 28 February 2023, unless the Authority decides otherwise.
The annual Competition Act conferred the Transport Regulation Authority new specific powers regarding the judicial settlement of disputes between users or consumers and economic operators managing networks, infrastructures and services, including air transport. Article 10 of l. 118/2022 assigned the Authority, through the specification “and to settle the related disputes“, that non jurisdictional settlement of disputes that can arise between users and managers of transport infrastructures.
The procedure consists of a binding attempt at conciliation and a possible phase of settling the dispute before the Authority. Until the mandatory settlement is accomplished under these Guidelines, the judicial appeal is not enforceable.
For the judicial appeal, the condition of prosecutability shall be deemed to be achieved thirty days after notification to the Parties of the procedure for the realization of the settlement attempt. After that period, if the Party acts before the Courts, the conciliation attempt shall be declared to be terminated.
The attempt at conciliation can be carried out before:
- a) ART’s Conciliation Service;
- b) Conciliation Chambers set up by the Chambers of Commerce, Industry, Crafts and Agriculture;
- c) ADR’s structures, listed by ART, such as those regarding the joint negotiation included in the index set up by the Authority.
The regulation of the organization chosen by the Parties applies to the procedures, that is, ADR’s procedure will follow different procedural rules depending on the structure chosen by the traveler.
Conciliation attempts through Art’s Operating System
The mandatory attempt at conciliation is handled by ART’s Operating System; only for users living abroad, it is possible to accredit to ART’s platform through a specific registration. The user can submit the application and participate in the procedure independently or through his/her delegate. If the user opts for a delegate, the related costs will be borne by the user so that all the costs of the lawyer who will assist the passenger in this procedure will be borne by the latter.
The passenger may submit the request for conciliation only if he/she has already lodged a complaint or a claim for reimbursement or compensation with the economic operator and has received a reply considered unsatisfactory or has not received a reply within thirty days. An application for conciliation shall be inadmissible if it is lodged more than one year after the complaint has been filed with the economic operator.
The settlement is inadmissible when:
- a) It is submitted without prior complaint to the economic operator or without waiting for the deadlines referred to in Article 6, paragraph 1;
- b) For the same dispute there are pending proceedings before the Judicial Authority, except where the settlement has been ordered by the latter.
Launch of the procedure
Art’s Operating System, once the application is submitted, notifies to the Parties that the process of the settlement is launched. The economic operator who does not wish to participate in the conciliation procedure shall notify ART’s Conciliation Service; if the economic operator does not present the communication referred to in paragraph 3 and does not respond to notifications received through ART’s Operating System, ART’s Conciliation Service will draw up a report stating the negative outcome of the conciliation attempt, giving notice to the Parties.
Procedure’s Development and Outcome
The conciliation procedure before ART’s Conciliation Service is carried out by non-simultaneous exchange of communications between the Parties and the Conciliator; if the Parties do not reach an agreement on all or some of the disputed points, on the report will be recorded only the subject matter of the dispute submitted to a conciliation attempt with a negative outcome. The Parties may ask to state in the report any partial solution on which they agree or each Party may request to actualize their motion for a resolution of the dispute.
The report will be signed by the Parties via digital signature.
For further information, please contact:
Lawyer Luca Salvi
+390697996090
luca.salvi@ssalex.com