CJEU judgment on air carrier liability under the Montreal Convention

Eleonore Prüller-Frey v Norbert Brodnig and Axa Versicherung AG
C-240/14, CJEU, 9 September 2015

Reference for a preliminary ruling — Air carrier liability in the event of accidents — Action for damages — Montreal Convention — Regulation (EC) No 2027/97 — Flight operated free of charge by the owner of a property in order to show that property to a prospective purchaser — Regulation (EC) No 864/2007 — Direct action provided for by national law against the civil-liability insurer

Non-applicability of Article 17 of the Montreal Convention to a non-paying passenger on a flight with the purpose of surveying a property. Direct action against insurer permitted.

The Court held:

1. Article 2(1)(a) and (c) of Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in respect of the carriage of passengers and their baggage by air, as amended by Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002, and Article 1(1) of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999 and approved on behalf of the European Union by Council Decision 2001/539/EC of 5 April 2001, must be interpreted as meaning that they preclude a determination on the basis of Article 17 of that Convention of a claim for damages brought by a person who — whilst she (i) was a passenger in an aircraft that had the same place of take-off and landing in a Member State and (ii) was being carried free of charge for the purpose of viewing from the air a property in connection with a property transaction planned with the pilot of that aircraft — was physically injured when the aircraft crashed.

2. Article 18 of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) must be interpreted as meaning that, in a situation such as that of the case before the referring court, a person who has suffered damage is entitled to bring a direct action against the insurer of the person liable to provide compensation, where such an action is provided for by the law applicable to the non-contractual obligation, regardless of the provision made by the law that the parties have chosen as the law applicable to the insurance contract.

For further CJEU case law, see our European Law – Cases page.

 

CJEU judgment on denied boarding and cancellation

Corina van der Lans v Koninklijke Luchtvaart Maatschappij NV
C-257/14, CJEU, 17 September 2015

Reference for a preliminary ruling — Air transport — Passengers’ rights in the event of delay or cancellation of a flight — Regulation (EC) No 261/2004 — Article 5(3) — Denied boarding and cancellation — Long flight delay — Compensation and assistance to passengers — Extraordinary circumstances

The Court held Article 5(3) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 must be interpreted as meaning that a technical problem, such as that at issue in the main proceedings, which occurred unexpectedly, which is not attributable to poor maintenance and which was also not detected during routine maintenance checks, does not fall within the definition of ‘extraordinary circumstances’ within the meaning of that provision.

For further CJEU case law, see our European Law – Cases page.

 

Reference to CJEU for a preliminary ruling on derogation from greenhouse gas emissions trading schemes

Swiss International Air Lines Ag v (1) the Secretary of State for Energy And Climate Change (2) the Environment Agency [2015] EWCA Civ 331
Court of Appeal
Lord Justice Underhill, Lord Justice Vos, Lord Justice Burnett
1 April 2015

The appellant and claimant, Swiss International Air Lines AG (“Swiss”), challenged the validity of Decision 377/2013/EU of the European Parliament and of the Council of 24 April 2013 (the “Decision”). The Decision made provisions that derogated temporarily from Directive 2003/87/EC (the “Directive”) of the European Parliament and of the Council of 13 October 2003 which had established a scheme for greenhouse gas emission allowance trading within the European Union (“EU”) (as amended by the Directive 2008/101/EC (the “Aviation Directive”) of the European Parliament and of the Council of 19 November 2008 so as to include aviation activities). The effect of these directives was extended to states in the European Economic Area (“EEA”) by EEA Joint Committee Decisions 6/2011 and 43/2011.

Swiss is an air transport operator licensed in Switzerland. Switzerland is not a member of the EEA or the EU.

Rather than directly challenging the Decision, Swiss alleged before the UK court the invalidity of the regulations implementing the Decision in the UK, namely the Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2013 (No. 1037) (the “Regulations”). Since the Regulations do no more than implement the Decision, Swiss sought a reference to the CJEU, which is the only court that has jurisdiction to declare an EU measure invalid.

Swiss contended that it is badly affected by this state of affairs, and alleged that the Decision is a breach of the EU law principle of equal treatment. The lower courts rejected the application on the grounds that the EU law principle of equal treatment did not apply to differential treatment by the EU towards third countries, and that, even if the principle did apply, there was no arguable case that it had been breached in this case. The issue before the Court of Appeal was whether the judges were right on these two points. If they were not, then, it was common ground that a reference to the CJEU would be appropriate at least as to the validity of the Decision. Swiss aims to recover the surrendered allowances or their monetary worth.

Swiss brought the proceedings in the UK because the UK is Swiss’s “administering Member State” under article 18a of the Directive, as Swiss’s greatest estimated attributed aviation emissions in the relevant period were in relation to UK flights. The Environment Agency, the 2nd defendant and 2nd respondent, is the agency that undertakes that administration. The 1st defendant and 1st respondent, the Secretary of State for Energy and Climate Change, were joined because they were responsible for making the Regulations that are directly challenged.

The appeal was allowed and the following questions were referred to the CJEU for a preliminary ruling:

Question 1: Does the Decision infringe the general EU principle of equal treatment insofar as it establishes a moratorium on the requirements to surrender emissions allowances imposed by the Directive (as amended) in respect of flights between EEA states and almost all non-EEA states, but does not extend that moratorium to flights between EEA states and Switzerland?

Question 2: If so, what remedy must be provided to a claimant in the position of Swiss, which has surrendered emissions allowances in respect of flights that took place during 2012 between EEA states and Switzerland, to restore that claimant to the position it would have been in, but for the exclusion from the moratorium of flights between EEA states and Switzerland? In particular:-

a) Must the register be rectified to reflect the lesser number of allowances that such a claimant would have been required to surrender if flights to or from Switzerland had been included in the moratorium?

b) If so, what (if any) action must the national competent authority and/or the national court take to procure that the additional allowances surrendered are returned to such a claimant?

c) Does such a claimant have a right to claim damages under Article 340 of the TFEU against the European Parliament and the Council for any loss that it has suffered by reason of having surrendered additional allowances as a result of the Decision?

d) Must the claimant be granted some other form of relief, and if so what relief?

For further UK case law, see our United Kingdom – Cases page.

 

Meaning of ‘passenger’ under EU air carrier insurance regulation and Montreal Convention

Wucher Helicopter GmbH and Euro-Aviation Versicherung AG v Fridolin Santer
C-6/14, CJEU, 26 February 2015

References for a preliminary ruling — Regulation (EC) No 785/2004 — Air carriers and aircraft operators — Insurance — Requirements — Definitions of ‘passenger’ and ‘member of the crew’ — Helicopter — Carriage of an expert in the blasting of avalanches using explosives — Injury suffered during a work flight — Compensation

The request for a preliminary ruling concerned the interpretation of Article 3(g) of Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators and Article 17(1) of the Convention for the Unification of Certain Rules for International Carriage by Air (‘the Montreal Convention’).

The request was made in ‘revision’ proceedings between Wucher Helicopter GmbH, an Austrian air carrier (‘Wucher’) and Euro-Aviation Versicherungs AG (‘Euro-Aviation’), a German insurance company and Mr Santer, concerning compensation for Mr Santer for an injury suffered in an accident which occurred on a flight.

The Oberster Gerichtshof referred the following questions to the Court for a preliminary ruling:

1. Is Article 3(g) of [Regulation No 785/2004] to be interpreted as meaning that the occupant of a helicopter held by a Community air carrier,
– who is carried on a contractual basis (specifically: a contract between the air carrier and the occupant’s employer),
– but who is carried for the purpose of a particular job of work (specifically: the blasting of avalanches)
and
– who is involved in that operation as a “guide familiar with the terrain” and must at the pilot’s direction open the helicopter door during the flight and then hold it open in a particular manner and for a particular period of time,

(a) is a “passenger”
or
(b) ranks among “on-duty members of both the flight crew and the cabin crew”?

2. If Question 1(a) is answered in the affirmative:

Is Article 17(1) of the [Montreal Convention] to be interpreted as meaning that the term “passenger” (German: “Reisender”) in any event includes a “passenger” (German: “Fluggast”) within the meaning of Article 3(g) of Regulation (EC) No 785/2004?

3. If Question 2 is answered in the negative:

Is Article 17(1) of the Montreal Convention to be interpreted as meaning that under the conditions stated in Question 1 the occupant of a helicopter held by a Community air carrier is a “passenger” (“Reisender”)?’

The CJEU held:
1. Article 3(g) of Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators must be interpreted as meaning that the occupant of a helicopter held by a Community air carrier, who is carried on the basis of a contract between that air carrier and the occupant’s employer in order to perform a specific task, such as that at issue in the main proceedings, is a ‘passenger’ within the meaning of that provision.

2. Article 17 of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999, signed by the European Community on 9 December 1999 on the basis of Article 300(2) EC, approved on behalf of the EC by Council Decision 2001/539/EC of 5 April 2001, must be interpreted as meaning that a person who comes within the definition of ‘passenger’ within the meaning of Article 3(g) of Regulation No 785/2004, also comes within the definition of ‘passenger’ within the meaning of Article 17 of that convention, once that person has been carried on the basis of a ‘contract of carriage’ within the meaning of Article 3 of that convention.

For further CJEU case law, see our European Law – Cases page.

Application for annulment of Decision 2013/199/EU concerning differentiated air travel tax rates implemented by Ireland

Aer Lingus Ltd v European Commission
T-473/12, CJEU, 5 February 2015

State aid — Irish tax on air passengers — Lower rate for destinations no more than 300 km from Dublin — Decision declaring the aid incompatible with the internal market and ordering its recovery — Advantage — Selective nature — Identification of the beneficiaries of the aid — Article 14 of Regulation (EC) No 659/1999 — Obligation to state reasons

Application for annulment of Commission Decision 2013/199/EU of 25 July 2012 on State aid Case SA.29064 (11/C, ex 11/NN) concerning differentiated air travel tax rates implemented by Ireland.

Application granted. Article 4 of Commission Decision 2013/199/EU of 25 July 2012 on State aid Case SA.29064 (11/C, ex 11/NN) — Differentiated air travel tax rates implemented by Ireland, in so far as it orders the recovery of the aid from the beneficiaries for an amount which is set at EUR 8 per passenger in recital 70 of that decision annuled.

For further CJEU case law, see our European Law – Cases page.

CJEU Judgment in easyJet v European Commission regarding alleged anti-competitive conduct

easyJet Airline Co Ltd v European Commission
T-355/13, CJEU, 21 January 2015

Competition — Abuse of a dominant position — Airport services market — Decision rejecting a complaint — Article 13(2) of Regulation (EC) No 1/2003 — Case dealt with by a competition authority of a Member State — Rejection of the complaint on priority grounds — Decision of the competition authority drawing conclusions, in competition law, from an investigation conducted under national legislation applicable to the sector in question — Obligation to state reasons

Application for annulment of Commission Decision C(2013) 2727 final of 3 May 2013 rejecting the complaint lodged by the applicant (easyJet) against Luchthaven Schiphol NV in relation to alleged anti-competitive conduct in the airport services market (Case COMP/39.869 — easyJet/Schiphol).

Application dismissed.

For further CJEU case law, see our European Law – Cases page.

CJEU Judgment on how the prices of air services must be displayed in computerised booking systems

Air Berlin plc & Co. Luftverkehrs KG v Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband e. V.
C-573/13, CJEU, 15 January 2015

Reference for a preliminary ruling — Regulation (EC) No 1008/2008 — Air services — Second sentence of Article 23(1) — Price transparency — Computerised booking system — Air fares — Indication at all times of the final price

Request for a preliminary ruling concerning the interpretation of the second sentence of Article 23(1) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community. The request was made in proceedings between Air Berlin plc & Co. Luftverkehrs KG (‘Air Berlin’), an air carrier, and the Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband e. V. (Federal Union of Consumer Organisations and Associations; ‘the Bundesverband’) concerning the way in which air fares are presented in the computerised booking system of Air Berlin.

The Bundesgerichtshof (Federal Court of Justice) referred the following questions to the CJEU:
(1) Is the second sentence of Article 23(1) of Regulation No 1008/2008 to be interpreted as meaning that the final price to be paid must, in the context of a computerised booking system, be indicated when the prices of air services are shown for the first time?

(2) Is the second sentence of Article 23(1) of Regulation No 1008/2008 to be interpreted as meaning that the final price to be paid must, in the context of a computerised booking system, be indicated only for the air service specifically selected by the customer or for each air service shown?

The CJEU held:
1. The second sentence of Article 23(1) of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community must be interpreted as meaning that, in the context of a computerised booking system such as that at issue in the main proceedings, the final price to be paid must be indicated whenever the prices of air services are shown, including when they are shown for the first time.

2. The second sentence of Article 23(1) of Regulation No 1008/2008 must be interpreted as meaning that, in the context of a computerised booking system such as that at issue in the main proceedings, the final price to be paid must be indicated not only for the air service specifically selected by the customer, but also for each air service in respect of which the fare is shown.

For further CJEU case law, see our European Law – Cases page.

CJEU Judgment on the commercial use of data by PR Aviation BV from Ryanair’s website

Ryanair Ltd v PR Aviation BV
C-30/14, CJEU, 15 January 2015

Reference for a preliminary ruling — Directive 96/9/EC — Legal protection of databases — Database not protected by copyright or the sui generis right — Contractual limitation on the rights of users of the database

Request for a preliminary ruling in proceedings between Ryanair Ltd (‘Ryanair’) and PR Aviation BV (‘PR Aviation’) concerning the use by the latter, for commercial purposes, of data from Ryanair’s website.

The CJEU held:
Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases must be interpreted as meaning that it is not applicable to a database which is not protected either by copyright or by the sui generis right under that directive, so that Articles 6(1), 8 and 15 of that directive do not preclude the author of such a database from laying down contractual limitations on its use by third parties, without prejudice to the applicable national law.

For further CJEU case law, see our European Law – Cases page.

CJEU Judgment on the meaning of State Aid in Article 107(1) TFEU

Ryanair v Commission
T-512/11, CJEU, 25 November 2014

State aid — Aviation sector — Irish air travel tax — Exemption for transit and transfer passengers — Decision finding no State aid — Failure to open the formal investigation procedure — Serious difficulties — Procedural rights of parties concerned

Application for annulment in part of Commission Decision C(2011) 4932 final of 13 July 2011 in so far as it finds that the non-application of the Irish air travel tax to transit and transfer passengers does not constitute State aid within the meaning of Article 107(1) TFEU (State aid SA.29064 (2011C ex 2011/NN)).

Commission Decision annulled.

For further CJEU case law, see our European Law – Cases page.

CJEU Judgment concerning personal data on passports and interpreting Regulation (EC) No 2252/2004 & ICAO Doc 9303

U v Stadt Karlsruhe
C-101/13, CJEU, 2 October 2014

Area of freedom, security and justice – Regulation (EC) No 2252/2004 – Document 9303 of the International Civil Aviation Organisation (ICAO), Part 1 – Minimum security standards for passports and travel documents issued by the Member States – Machine readable passport – Inclusion of the birth name on the personal data page of the passport – Name to appear in a form not liable to give rise to confusion

Request for a preliminary ruling concerning the interpretation of Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States, as amended, where the City of Karlsruhe refused to alter the form in which Mr U’s birth name appeared in his German passport

The CJEU held:
1. The Annex to Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States, as amended by Regulation (EC) No 444/2009 of the European Parliament and of the Council of 6 May 2009 must be interpreted as requiring the machine readable personal data page of passports issued by the Member States to satisfy all the compulsory specifications provided for by Part 1 of Document 9303 of the International Civil Aviation Organisation (ICAO).

2. The Annex to Regulation No 2252/2004, as amended by Regulation No 444/2009, read in conjunction with International Civil Aviation Organisation Document 9303, Part 1, must be interpreted, where the law of a Member State provides that a person’s name comprises his forenames and surname, as not precluding that State from being entitled nevertheless to enter the birth name either as a primary identifier in Field 06 of the machine readable personal data page of the passport or as a secondary identifier in Field 07 of that page or in a single field composed of Fields 06 and 07.

3. The Annex to Regulation No 2252/2004, as amended by Regulation No 444/2009, read in conjunction with the provisions of International Civil Aviation Organisation Document 9303, Part 1, Section IV, point 8.6, must be interpreted, where the law of a Member State provides that a person’s name comprises his forenames and surname, as precluding that State from being entitled to enter the birth name as an optional item of personal date in Field 13 of the machine readable personal data page of the passport.

4. The Annex to Regulation No 2252/2004, as amended by Regulation No 444/2009, read in conjunction with International Civil Aviation Organisation Document 9303, Part 1, must be interpreted, in the light of Article 7 of the Charter, as meaning that, where a Member State whose law provides that a person’s name comprises his forenames and surname chooses nevertheless to include the birth name of the passport holder in Fields 06 and/or 07 of the machine readable personal data page of the passport, that State is required to state clearly in the caption of those fields that the birth name is entered there.

For further CJEU case law, see our European Law – Cases page.