Finnair Oyj v Keskinäinen Vakuutusyhtiö Fennia.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2017:1016
• Date: 20 December 2017
• Celex Number: 62016CC0258
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-258/16

OPINION OF ADVOCATE GENERAL

SHARPSTON

delivered on 20 December 2017 ( 1 )

Case C‑258/16

Finnair Oyj

v

Keskinäinen Vakuutusyhtiö Fennia

(Request for a preliminary ruling from the Korkein oikeus (Supreme Court, Finland))

(International carriage by air — Montreal Convention — Article 31 — Liability of the carrier for damage to checked baggage — Requirements as to the form and content of a written complaint made to the carrier — Certificate from an airline company regarding damage to a passenger’s baggage, drafted at the request of the passenger for use in a claim against the passenger’s insurance company)

1. This request for a preliminary ruling concerns the interpretation of the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Montreal on 28 May 1999 (‘the Montreal Convention’), and more specifically the requirements in Article 31 thereof that complaints in respect of checked baggage shall be made ‘in writing’ and within seven days of receipt of the baggage.

2. The request has been made in proceedings between an insurance company (Keskinäinen Vakuutusyhtiö Fennia: ‘Fennia’) and an airline (Finnair), concerning damage resulting from the loss of items from checked baggage belonging to Ms Mäkelä-Dermedesiotis, who was a passenger on a flight operated by that company. Ms Mäkelä-Dermedesiotis had taken out insurance with Fennia against such loss, and Fennia, after compensating Ms Mäkelä-Dermedesiotis and having been subrogated to her claim, has brought proceedings to recover from Finnair.

Regulation No 2027/97

3. Article 1 of Council Regulation (EC) No 2027/97 ( 2 ) states: ‘This Regulation implements the relevant provisions of the Montreal Convention in respect of the carriage of passengers and their baggage by air and lays down certain supplementary provisions …’

4. Article 3(1) of Regulation No 2027/97 provides: ‘The liability of a [European Union] air carrier in respect of passengers and their baggage shall be governed by all provisions of the Montreal Convention relevant to such liability.’

Montreal Convention

5. The Montreal Convention was approved on behalf of the then European Community by Council Decision 2001/539/EC. ( 3 )

6. According to the third recital of the Montreal Convention, the parties to the convention recognise ‘the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution’.

7. In that connection, the fifth recital states that ‘collective State action for further harmonisation and codification of certain rules … through a new Convention is the most adequate means of achieving an equitable balance of interests’.

8. Article 1 (‘Scope of application’) states that the Montreal Convention applies to ‘all international carriage of persons, baggage or cargo performed by aircraft for reward’.

9. Article 17 is entitled ‘Death and injury of passengers – damage to baggage’. Paragraph 2 of that article provides essentially that the carrier is to incur strict liability in respect of damage to checked baggage.

10. Monetary limits for carriers’ liability in respect of, inter alia, damaged baggage are set out in Article 22.

11. Article 29 (‘Basis of claims’) provides that ‘any action for damages’ arising from the carriage of baggage can be brought only subject to the conditions and limits set out in the Convention.

12. Article 31 of the Montreal Convention, entitled ‘Timely notice of complaints’, reads as follows: ‘1. Receipt by the person entitled to delivery of checked baggage … without complaint is prima facie evidence that the same has been delivered in good condition and in accordance with the document of carriage or with the record preserved by the other means referred to in paragraph 2 of Article 3 [ ( 4 )] … 2. In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at the latest, within seven days from the date of receipt in the case of checked baggage … In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage … [has] been placed at his or her disposal. 3. Every complaint must be made in writing and given or dispatched within the times aforesaid. 4. If no complaint is made within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on its part.’

Facts, procedure and questions referred

13. Ms Mäkelä-Dermedesiotis was a passenger on a Finnair flight from Malaga (Spain) to Helsinki (Finland). On arrival in Helsinki on 1 November 2010, she found that items were missing from the baggage that she had checked in.

14. Ms Mäkelä-Dermedesiotis notified a Finnair customer service representative by telephone that same day. She identified the lost items and informed the representative of their value. The representative entered the information provided by Ms Mäkelä-Dermedesiotis into the Finnair electronic information system. On 3 November 2010, Ms Mäkelä-Dermedesiotis again telephoned the Finnair customer service in order to obtain a certificate for her claim under her insurance policy with Fennia. Finnair duly issued her with that certificate.

15. Fennia thereupon compensated Ms Mäkelä-Dermedesiotis for the loss suffered and — having been subrogated to Ms Mäkelä-Dermedesiotis’ original claim — brought an action on 2 September 2011 before the Helsingin käräjäoikeus (District Court, Helsinki, Finland) claiming repayment from Finnair.

16. Finnair contested the action, arguing in essence that the claim for repayment was barred, since Ms Mäkelä-Dermedesiotis had not filed a written claim within the periods laid down in Article 31 of the Montreal Convention. The Helsingin käräjäoikeus (District Court, Helsinki, Finland) found for Finnair and dismissed the action by judgment of 4 September 2012.

17. Fennia appealed to the Helsingin hovioikeus (Court of Appeal, Helsinki, Finland). That court examined, inter alia, the instructions to passengers on Finnair’s website, which contained different indications for giving a notice of complaint and actually making the written complaint. A notice of complaint could be made by telephone, whereas a written complaint had to be made using a particular form within seven days after receipt of the baggage. The court considered the instructions on Finnair’s website ‘not sufficiently clear and unambiguous for a passenger as a consumer’. Since the instructions did not mention for what purpose the notice of complaint was to be made, the passenger, as a consumer, could legitimately believe that a complaint made over the telephone and registered by an employee of the undertaking would also satisfy the requirements of a formal written complaint. The passenger had given notice to Finnair setting out the loss precisely and had received a written certificate, from which it appeared that the complaint was entered in time in Finnair’s information system. Having received the notice of complaint, Finnair did not inform the passenger that it considered such notice insufficient for it to be held liable and that a further notice in writing needed to be submitted.

18. The Helsingin hovioikeus (Court of Appeal, Helsinki) concluded that, on those facts, the passenger had made a valid complaint in due time against the carrier. By judgment of 28 February 2014, that court set aside the judgment of the Helsingin käräjäoikeus (District Court, Helsinki) and ordered Finnair to make repayment to Fennia.

19. Finnair appealed to the Korkein oikeus (Supreme Court, Finland), claiming that it should set aside the judgment of the Helsingin hovioikeus (Court of Appeal, Helsinki) and confirm the judgment of the Helsingin käräjäoikeus (District Court, Helsinki).

20. The Korkein oikeus (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘(1) Is Article 31(4) of the Montreal Convention to be interpreted as meaning that, to preserve a right of action, it is necessary, in addition to giving notice of a complaint in due time, that the complaint be made in writing within the times specified, in accordance with Article 31(3)? (2) If, to preserve a right of action, a complaint must be made in writing in due time, is Article 31(3) of the Montreal Convention to be interpreted as meaning that the requirement of writing may be fulfilled in an electronic procedure and also by the registration of the damage in the information system of the carrier? (3) Does the Montreal Convention preclude an interpretation by which the requirement of writing is regarded as fulfilled where, with the knowledge of the passenger, a representative of the carrier records in writing the notice of complaint/the complaint either on paper or electronically in the carrier’s system? (4) Does Article 31 of the Montreal Convention subject a complaint to further substantive requirements than that of giving notice to the carrier of the damage sustained?’

21. Written observations were submitted by Finnair, the Italian Government and the European Commission.

22. At the hearing on 23 March 2017, Finnair, Fennia and the European Commission made oral submissions.

Assessment

General remarks

23. The provisions of the Montreal...