Irène Bogiatzi, married name Ventouras v Deutscher Luftpool and Others.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Malenovský
• ECLI: ECLI:EU:C:2009:400
• Docket Number: C-301/08
• Date: 25 June 2009
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

MAZÁK

delivered on 25 June 2009 (1)

Case C-301/08

Irène Bogiatzi, married name Ventouras

v

Deutscher Luftpool

Luxair SA

European Communities

State of the Grand Duchy of Luxembourg

Le Foyer Assurances SA

(Reference for a preliminary ruling from the Cour de cassation (Luxembourg))

(Regulation (EC) No 2027/97 – Article 29 of the Warsaw Convention – Liability of a Community air carrier for damage sustained by a passenger in the event of an accident – Time-limits for bringing an action for damages – International agreement concluded by the Member States – Jurisdiction of the Court under Article 234 EC to interpret Article 29 of the Warsaw Convention – Effect of a Community regulation on an international agreement – Article 307 EC)

I – Introduction

1. By decision of 26 June 2008, received at the Court on 7 July 2008, the Cour de cassation (Court of Cassation), Luxembourg, referred a number of questions to the Court of Justice under Article 234 EC for a preliminary ruling on the interpretation of Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents (2) (‘Regulation No 2027/97’), in connection with the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929 (‘the Warsaw Convention’).

2. The questions referred were raised in proceedings brought by Ms Irène Bogiatzi against Luxair SA and Deutscher Luftpool, an association under German law, for damages in respect of an accident she had suffered while boarding a Luxair aeroplane on 21 December 1998 (‘the material time’).

3. With a view to ascertaining whether Ms Bogiatzi’s right to bring an action for damages has been extinguished, the referring court essentially wishes to know whether Article 29 of the Warsaw Convention, which lays down a limitation period of two years in respect of such claims, is applicable in the circumstances of the case before it, even though Regulation No 2027/97 makes no express provision to that effect, and, if so, whether that period can be interrupted, suspended or waived.

4. In that regard, however, the first question referred raises a preliminary issue, concerning the extent, if any, of the Court’s jurisdiction under Article 234 EC to interpret the Warsaw Convention.

II – Legal framework

A – The Warsaw Convention

5. The Warsaw Convention contains, among other things, rules on the liability of air carriers in the event of accidents. It has been amended several times, in particular by the protocol of The Hague of 28 September 1955, the Convention of Guadalajara of 18 September 1961 and the four additional protocols of Montreal of 25 September 1975.

6. Although the Community is not itself a party to the Warsaw Convention, at the material time all 15 Member States had acceded to it.

7. Article 29 of the Warsaw Convention, in the version in force at the material time, provides in respect of actions for damages:

‘1. The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

2. The method of calculating the period of limitation shall be determined by the law of the Court seized of the case.’

8. The Convention for the Unification of Certain Rules for International Carriage by Air (‘the Montreal Convention’), (3) which was intended to modernise and consolidate the Warsaw Convention and the related instruments, was signed in Montreal on 28 May 1999. It was also signed by the Community on 9 December 1999 and approved on behalf of the Community by Council Decision 2001/539/EC of 5 April 2001 on the conclusion of the Montreal Convention. (4)

9. The Montreal Convention, to which both the Community and the 27 Member States are parties, entered into force on 4 November 2003, that is to say, after the material time. It should be noted, however, that Article 35 of that convention, entitled ‘Limitation of actions’, is identical to Article 29 of the Warsaw Convention.

B – Regulation No 2027/97

10. The preamble to Regulation No 2027/97, in the version in force at the material time, states, so far as is relevant for present purposes:

‘(1) … in the framework of the common transport policy, it is necessary to improve the level of protection of passengers involved in air accidents;

(2) … the rules on liability in the event of accidents are governed by the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929, or that Convention as amended at The Hague on 28 September 1955 and the Convention done at Guadalajara on 18 September 1961, whichever may be applicable each being hereinafter referred to, as applicable, as the “Warsaw Convention”; … the Warsaw Convention is applied worldwide for the benefit of both passengers and air carriers;

(3) … the limit set on liability by the Warsaw Convention is too low by today’s economic and social standards and often leads to lengthy legal actions which damage the image of air transport; … as a result Member States have variously increased the liability limit, thereby leading to different terms and conditions of carriage in the internal aviation market;

(4) … in addition the Warsaw Convention applies only to international transport; … in the internal aviation market, the distinction between national and international transport has been eliminated; … it is therefore appropriate to have the same level and nature of liability in both national and international transport;

(5) … a full review and revision of the Warsaw Convention is long overdue and would represent, in the long term, a more uniform and applicable response, at an international level, to the issue of air carrier liability in the event of accidents; … efforts to increase the limits of liability imposed in the Warsaw Convention should continue through negotiation at multilateral level;

…

(7) … it is appropriate to remove all monetary limits of liability within the meaning of Article 22(1) of the Warsaw Convention or any other legal or contractual limits, in accordance with present trends at international level;

…’

11. Article 2(2) of Regulation No 2027/97 provides:

‘Concepts contained in this Regulation which are not defined in paragraph 1 shall be equivalent to those used in the Warsaw Convention.’

12. Article 5(1) and (3) provide:

‘1. The Community air carrier shall without delay, and in any event not later than 15 days after the identity of the natural person entitled to compensation has been established, make such advance payments as may be required to meet immediate economic needs on a basis proportional to the hardship suffered.

…

3. An advance payment shall not constitute recognition of liability and may be offset against any subsequent sums paid on the basis of Community air carrier liability, but is not returnable, except in the cases prescribed in Article 3(3) or in circumstances where it is subsequently proved that the person who received the advance payment caused, or contributed to, the damage by negligence or was not the person entitled to compensation.’

13. After the material time, Regulation No 2027/97 was amended by Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002 (‘Regulation No 889/2002’). (5)

III – Facts, procedure and the questions referred

14. As emerges from the order for reference, Ms Bogiatzi suffered a fall on the tarmac at Luxembourg airport while boarding a Luxair aeroplane on 21 December 1998.

15. On 22 December 2003, Ms Bogiatzi brought proceedings against Deutscher Luftpool and Luxair before the tribunal d’arrondissement de Luxembourg (Luxembourg District Court), claiming on the basis of Regulation No 2027/97 and the Warsaw Convention that those companies should be ordered jointly and severally to pay compensation in respect of the damage which she had suffered.

16. After noting that the application had been lodged five years after the accident, the tribunal d’arrondissement de Luxembourg declared that the action was time-barred, since it had been brought after the expiry of the two-year limitation period laid down in Article 29 of the Warsaw Convention for the bringing of actions for damages. In that regard, the tribunal took the view that that limitation period is predetermined and may not be suspended or interrupted.

17. On appeal by Ms Bogiatzi, the cour d’appel (Court of Appeal), Luxembourg, ruled by judgment of 28 March 2007 that the appeal was inadmissible in so far as it had been brought against the insurance company, Le Foyer Assurances SA, and the State of Luxembourg, but essentially upheld the decision of the tribunal as to the remainder.

18. In the main proceedings, it falls to the Cour de cassation to decide on the appeal which Ms Bogiatzi lodged against that judgment in so far as it rules that her right of action against the air carrier Luxair and its insurer Deutscher Luftpool has been extinguished. The appeal is based on a number of pleas in law alleging, inter alia, infringement of Regulation No 2027/97. In particular, Ms Bogiatzi appeals against the application, in a situation governed by that regulation, of the two-year limitation period laid down in Article 29 of the Warsaw Convention.

19. Against that background, the Cour de cassation decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘1. Does the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929, as amended at The Hague on 28 September 1955, to which Regulation (EC) No 2027/97 refers, form part of the rules of the Community legal order which the Court of...