Opinion of Advocate General Emiliou delivered on 12 January 2023.

• Jurisdiction: European Union
• Celex Number: 62021CC0510
• ECLI: ECLI:EU:C:2023:19
• Date: 12 January 2023
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

EMILIOU

delivered on 12 January 2023(1)

Case C‑510/21

DB

v

Austrian Airlines AG

(Request for a preliminary ruling from the Oberster Gerichtshof (Supreme Court, Austria))

(Reference for a preliminary ruling – Air transport – Montreal Convention – Liability of air carriers for death or bodily injuries sustained by passengers – Exclusivity of the Convention – Article 29 – Scope – Claims related to bodily injuries sustained by passengers as result of ‘accidents’ within the meaning of Article 17(1) – Claim for compensation, based on domestic rules of civil liability, relating to injuries allegedly caused by the inadequate first aid administered by the flight attendants after an accident – Sufficient causal nexus between the injuries and the accident – Claim exclusively governed by Article 17(1) – Claim pre-empted by the Convention)

I. Introduction

1. The Convention for the Unification of Certain Rules for International Carriage by Air (2) (‘the Montreal Convention’) and its precursor, the Warsaw Convention, (3) have, throughout their many years of application, been the subject of considerable judicial controversy. One issue, among those at the very centre of debate, is the extent to which those conventions, which notably deal with the liability of air carriers in case of death or bodily injury sustained by passengers, prevent – or, in other words, ‘pre-empt’ – claims for compensation based not on their provisions, but on domestic law.

2. That controversy resurfaces in the present case, which concerns an action for compensation brought by DB against Austrian Airlines AG (‘Austrian Airlines’). DB claims, on the basis of the Austrian rules of civil liability, damages for injuries he sustained, as a passenger on an international flight operated by that carrier, allegedly as a result of the flight attendants’ failure to administer proper first aid after a jug of scalding coffee spilled on him during the flight. As he did not lodge his claim under the Montreal Convention and since, in any event, he initiated proceedings after the expiration of the limitation period laid down therein – but in accordance with the longer one set out in Austrian law for civil liability actions – the pivotal issue at hand, which lies at the heart of the two questions that the Oberster Gerichtshof (Supreme Court, Austria) referred to the Court of Justice, is whether that convention pre-empts such a claim. In this Opinion, I will explain why that is indeed the case.

II. Legal framework

A. The Montreal Convention

3. The third recital of the Montreal Convention states that the States Parties ‘[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’.

4. The fifth recital of that convention states that ‘collective State action for further harmonisation and codification of certain rules governing international carriage by air through a new Convention is the most adequate means of achieving an equitable balance of interests’.

5. Article 17 of the Montreal Convention, entitled ‘Death and injury of passengers – damage to baggage’, provides in paragraph 1 that ‘the carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking’.

6. Pursuant to Article 29 of that convention, entitled ‘Basis of Claims’, ‘in the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. …’.

7. Article 35 of the same convention, entitled ‘Limitation of Actions’, provides, in paragraph 1, that ‘the right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination …’.

B. European Union law

8. Article 3(1) of Council Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air, (4) as amended by Regulation (EC) No 889/2002 (5) (‘Regulation No 2027/97’), states that ‘the liability of a Community air carrier in respect of passengers and their baggage shall be governed by all provisions of the Montreal Convention relevant to such liability’.

III. Facts, national proceedings and the questions referred

9. On 18 December 2016, DB travelled from Tel Aviv (Israel) to Vienna (Austria) on a flight operated by Austrian Airlines, pursuant to a contract of carriage by air concluded with that company.

10. During the flight, a jug of coffee fell from a serving trolley being manoeuvred by the attendants through the rows of seats. Hot coffee spilled and scalded DB. The attendants subsequently administered some form (6) of first aid on the injuries sustained.

11. On 31 May 2019, DB brought, on the basis of the Austrian rules of civil liability, and within the three-year limitation period set out therein, (7) an action against Austrian Airlines before the Handelsgericht Wien (Commercial Court, Vienna, Austria), seeking damages to the amount of EUR 10 196 and a declaration establishing the carrier’s liability for all future injury arising from that incident. In essence, DB claimed that he suffered severe burns and that, under Austrian law, Austrian Airlines ought to be liable not only for the carelessness of its employees which led to the fall of the jug, but also for the allegedly insufficient and inadequate first aid that was administered on his injuries thereafter. (8)

12. By judgment of 17 June 2020, the Handelsgericht Wien (Commercial Court, Vienna) dismissed the action in its entirety. In essence, that court considered that the claim at issue was governed exclusively by the Warsaw Convention and that, in accordance with that instrument, it was time-barred. Indeed, pursuant to Article 29 thereof, any claim for compensation against an air carrier is subject to a two-year limitation period, and DB brought proceedings after that period had elapsed.

13. By judgment of 28 October 2020, the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria) upheld that decision. Considering the Montreal Convention to be applicable to the facts at hand, (9) it ruled that DB’s claim fell within the scope of Article 17(1) of that convention. Indeed, DB’s injuries were to be regarded as caused by an ‘accident’ that took place on board the aircraft, within the meaning of that provision, namely the fall of the jug of scalding coffee, even if those injuries could possibly have been mitigated or avoided by the proper administration of first aid. Accordingly, that claim was time-barred since it was brought outside of the two-year limitation period laid down in Article 35 of that convention.

14. DB lodged an appeal on a point of law against that judgment before the Oberster Gerichtshof (Supreme Court). While admitting that the fall of the jug of coffee constituted an ‘accident’ within the meaning of Article 17(1) of the Montreal Convention, DB submitted that the allegedly inadequate first aid administered on his injuries thereafter had been a separate and autonomous cause of damage that did not fall within the scope of that provision. Therefore, in so far as his claim rested on that particular cause, that claim was governed not by that convention, but by Austrian law, in accordance with which it would not time-barred.

15. It is in those circumstances that the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Is first aid which is administered on board an aircraft following an accident within the meaning of Article 17(1) of the [Montreal Convention] and which leads to further bodily injury to the passenger which can be distinguished from the actual consequences of the accident to be regarded, together with the triggering event, as a single accident?

(2) If Question 1 is answered in the negative:

Does Article 29 of [the Montreal Convention] preclude a claim for compensation for damage caused by the administration of first aid where that claim is brought within the limitation period under national law but outside the period for bringing actions which is laid down in Article 35 of [that] convention?’

16. The request for a preliminary ruling, dated 5 August 2021, was lodged on 19 August 2021. Written observations have been submitted by DB, Austrian Airlines, the German Government, as well as the European Commission. No hearing was held in the present case.

IV. Analysis

17. The Montreal Convention is a treaty establishing certain uniform rules for international carriage by air. Since that convention was concluded by, inter alia, the European Union, (10) it has been an integral part of the EU legal order from the date on which it entered into force as far as that organisation is concerned, namely 28 June 2004. Accordingly, as of that date, the Court has had jurisdiction to deliver preliminary rulings concerning its interpretation. (11)

18. As the referring court observes, the flight at issue in the main proceedings falls within the general scope of the Montreal Convention. Indeed, DB concluded a contract of carriage with Austrian Airlines and that contract concerned an ‘international carriage’, within the meaning of Article 1 of that convention, as the place of departure and the place of destination of that flight are situated within the territories of two States Parties, namely the State of Israel and the Republic of...