CELEX: 62008CJ0301
Transport policy
Regulation (EC) No 2027/97
Warsaw Convention
Air carrier liability in the event of accidents
Time-limit for bringing an action for damages in respect of harm suffered

This reference for a preliminary ruling concerns the interpretation of Council Regulation (EC) No 2027/97 of 9 October 1997
on air carrier liability in the event of accidents (OJ 1997 L 285, p. 1), in connection with the Convention for the Unification
of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October 1929, as amended by the four additional
protocols signed at Montreal on 25 September 1975 (‘the Warsaw Convention’).
The reference was made in the course of proceedings brought by Ms Bogiatzi, married name Ventouras, against Société Luxair,
société luxembourgeoise de navigation aérienne SA (‘Luxair’), and Deutscher Luftpool, an association under German law, concerning
joint and several liability to compensate her for the injury she suffered as a result of an accident which occurred while
boarding a Luxair aeroplane.

Legal background

International rules
The European Community is not party to the Warsaw Convention, to which the 15 Member States of the European Union at the material
time had acceded.
The Warsaw Convention in its original version has been amended and supplemented on a number of occasions, by the Hague Protocol
of 28 September 1955, the Guadalajara Convention of 18 September 1961, the Guatemala Protocol of 8 March 1971, and the four
additional Montreal protocols of 25 September 1975.
Article 29 of the Warsaw Convention provides:
‘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 seised of the case.’

Community legislation
The first five recitals in the preamble to Regulation No 2027/97 are worded as follows:
‘(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’.
Recital 7 in the preamble to Regulation No 2027/97 states:
‘… 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’.
Article 2(1) of Regulation No 2027/97 defines the concepts of ‘air carrier’, ‘Community air carrier’, ‘person entitled to
compensation’, ‘ecu’, ‘SDR’ and ‘Warsaw Convention’.
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.’
Article 5(1) and (3) of Regulation No 2027/97 state:
‘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.’
Regulation No 2027/97 was amended by Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002
(OJ 2002 L 140, p. 2), which is not applicable to the main proceedings.

The dispute in the main proceedings and the questions referred for a preliminary ruling
On 21 December 1998, Ms Bogiatzi suffered a fall on the tarmac at Luxembourg airport while boarding a Luxair aeroplane.
On 22 December 2003, she brought proceedings for damages against Deutscher Luftpool – an association of aviation insurers
which is governed by German civil law – and Luxair before the tribunal d’arrondissement de Luxembourg (District Court, Luxembourg),
relying on Regulation No 2027/97 and the Warsaw Convention. Ms Bogiatzi’s claim, brought five years after the events at issue
took place, was held inadmissible. The court held that the two-year limitation period provided for in Article 29 of the Warsaw
Convention for bringing actions for damages is predetermined and may not be suspended or interrupted.
The inadmissibility of the claim was confirmed on appeal. Ms Bogiatzi then appealed on a point of law to the Cour de cassation
(Court of Cassation).
In those circumstances, the Cour de cassation decided to stay proceedings and to refer the following questions to the Court
of Justice for a preliminary ruling:
‘(1)      Does the [Warsaw] Convention, as amended at The Hague on 28 September 1955, to which Regulation … No 2027/97 refers, form
part of the rules of the Community legal order which the Court of Justice has jurisdiction to interpret under Article 234
EC?
(2)      Must … Regulation … No 2027/97 … in the version applicable at the time of the accident, namely 21 December 1998, be interpreted
as meaning that, with regard to issues for which no express provision is made, the provisions of the Warsaw Convention, in
this case Article 29, continue to apply to a flight between Member States of the Community?
(3)      If the answer to the first and second questions is in the affirmative, is Article 29 of the Warsaw Convention, in conjunction
with Regulation … No 2027/97, to be interpreted as meaning that the period of two years laid down in that article can be suspended
or interrupted or that the carrier or its insurer can waive that time-limit, by an act deemed by the national court to constitute
recognition of liability?’

Consideration of the questions referred for a preliminary ruling

The first question
By its first question, the national court asks essentially whether the Warsaw Convention forms part of the rules of the Community
legal order which the Court of Justice has jurisdiction to interpret under Article 234 EC.
As a preliminary point, it is appropriate to reply to the argument put forward by Luxair that, in the main proceedings, the
Court is in fact required not to interpret the Warsaw Convention but to apply Article 307 EC, under which, in the event of
conflict between a Community rule and an agreement which precedes the EC Treaty, the principle of primacy does not affect
the obligations of a Member State with respect to third countries.
In that connection, it must be recalled that, in accordance with settled case-law, the purpose of the first paragraph of Article
307 EC is to make it clear, in accordance with the principles of international law, that application of the Treaty is not
to affect the duty of the Member State concerned to respect the rights of third countries under a prior agreement and to perform
its obligations (see Case 812/79
Burgoa
[1980] ECR 2787, paragraph 8; Case C-216/01
Budĕjovický Budvar
[2003] ECR I‑13617, paragraphs 144 and 145; Case C-205/06
Commission
v
Austria
[2009] ECR I-0000, paragraph 33; and Case C‑249/06
Commission
v
Sweden
[2009] ECR I-0000, paragraph 34).
However, it is equally settled case-law that the provisions of an agreement concluded prior to the entry into force of the
Treaty cannot be relied on in intra-Community relations (see, in particular, Case 286/86
Deserbais
[1988] ECR 4907, paragraph 18; Joined Cases C-241/91 P and C-242/91 P
RTE and ITP
v
Commission
[1995] ECR I-743, paragraph 84; and Case C-473/93
Commission
v
Luxembourg
[1996] ECR I-3207, paragraph 40).
Therefore, Article 307 EC does not fall to be applied.
In those circumstances, it is necessary to return to the question referred, relating to the jurisdiction of the Court to interpret
the Warsaw Convention.
In that connection, it must be stated at the outset that, pursuant to Article 234 EC, the Court has jurisdiction to give preliminary
rulings concerning the interpretation of the EC Treaty and on the validity and interpretation of acts of the institutions
of the Community.
According to settled case-law, an agreement concluded by the Council, in accordance with Articles 300 EC and 310 EC, is, as
far as the Community is concerned, an act of one of the institutions of the Community, within the meaning of subparagraph
(b) of the first paragraph of Article 234 EC. The provisions of such an agreement form an integral part of the Community legal
order as from its entry into force and, within the framework of that order, the Court has jurisdiction to give preliminary
rulings concerning the interpretation of such an agreement (Case 181/73
Haegeman
[1974] ECR 449, paragraphs 4 to 6; Case 12/86
Demirel
[1987] ECR 3719, paragraph 7; Case C-321/97
Andersson and Wåkerås-Andersson
[1999] ECR I-3551, paragraph 26; and Case C-431/05
Merck Genéricos – Produtos Farmacêuticos
[2007] ECR I-7001, paragraph 31).
In the main proceedings, it is common ground that the Community is not a contracting party to the Warsaw Convention. Accordingly,
the Court does not, in principle, have jurisdiction to interpret the provisions of that convention in preliminary ruling proceedings
(see Case 130/73
Vandeweghe and Others
[1973] ECR 1329, paragraph 2, and the order in Case C-162/98
Hartmann
[1998] ECR I‑7083, paragraph 9).
However, the Court has also held that, where and in so far as, pursuant to the Treaty, the Community has assumed the powers
previously exercised by the Member States in the field to which an international convention applies and, therefore, its provisions
have the effect of binding the Community, the Court has jurisdiction to interpret such a convention, even though it has not
been ratified by the Community (see, to that effect, Joined Cases 21/72 to 24/72
International Fruit Company and Others
[1972] ECR 1219, paragraph 18; Case C-379/92
Peralta
[1994] ECR I-3453, paragraph 16; and Case C-308/06
Intertanko and Others
[2008] ECR I-4057, paragraph 48).
In the case in the main proceedings, it is common ground that all the Member States of the Community were parties to the Warsaw
Convention at the material time.
It should therefore be considered whether, in that case, the Community has, pursuant to the Treaty, assumed the powers previously
exercised by the Member States in the field to which the Warsaw Convention applies, a convention which covers all international
carriage by air of persons, baggage and cargo.
At the material time, the Community had adopted, on the basis of Article 80(2) EC, three regulations in the field to which
the Warsaw Convention applies.
First of all, mention should be made of Council Regulation (EEC) No 295/91 of 4 February 1991 establishing common rules for
a denied-boarding compensation system in scheduled air transport (OJ 1991 L 36, p. 5). The purpose of that regulation is limited
however to establishing certain common minimum rules with respect to compensation from air carriers, applicable to passengers
who are denied access to an overbooked scheduled flight. Unlike that regulation, which covers only denied boarding, the Warsaw
Convention covers the liability of air carriers, including for flight delays.
Next, Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers (OJ 1992 L 240, p. 1) lays down, in
Article 7, an obligation for air carriers to have civil liability insurance cover in case of accidents causing inter alia
injury to passengers or damage to baggage. However, unlike the Warsaw Convention, the conditions for liability of the air
carriers are not governed by that regulation.
Finally, Regulation No 2027/97, unlike the Warsaw Convention, covers only damage suffered as a result of death, wounding or
other bodily injury, and not material damage to baggage and cargo.
It follows that the Community has not assumed all the powers previously exercised by the Member States in the field to which
the Warsaw Convention applies.
In the absence of a full transfer of the powers previously exercised by the Member States to the Community, the latter cannot,
simply because at the material time all those States were parties to the Warsaw Convention, be bound by the rules set out
therein, which it has not itself approved (see, by analogy,
Intertanko and Others
, paragraph 49).
In the light of the foregoing, the answer to the first question is that the Warsaw Convention does not form part of the rules
of the Community legal order which the Court of Justice has jurisdiction to interpret under Article 234 EC.

The second question
By its second question, given that Regulation No 2027/97 operates in the sphere governed by the Warsaw Convention, to which,
at the material time, all the Member States of the Community were parties, and taking account of the principle of primacy
of Community law, the national court asks essentially whether Regulation No 2027/97 must be interpreted as not precluding
the application of the various provisions of that convention, in particular Article 29 thereof, to a situation in which a
passenger seeks to establish the liability of the air carrier on account of harm suffered by him when flying between Member
States of the Community.
It must be noted at the outset that, under Article 29 of the Warsaw Convention, the right to damages in the case of an accident
is to be extinguished if an action is not brought against the air carrier 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.
On the other hand, Regulation No 2027/97 does not contain any explicit provision relating to the limitation period for such
an action for damages, nor does it expressly refer to Article 29 of the Warsaw Convention.
Ms Bogiatzi submits essentially that, since Regulation No 2027/97 does not expressly refer to the provisions of the Warsaw
Convention applicable in the main proceedings and does not expressly render the provisions of the convention, in particular
Article 29 thereof, applicable to those proceedings, that regulation must be applied and interpreted autonomously.
It must be stated that an answer cannot be given to the question referred by the national court on the basis of just the wording
of Regulation No 2027/97 and its context.
In those circumstances, it is to be recalled that, according to settled case-law, in interpreting a provision of Community
law it is necessary to consider not only its wording and the context in which it occurs, but also the objective pursued by
the rules of which it is part (see, to that effect, inter alia, Case C‑301/98
KVS International
[2000] ECR I-3583, paragraph 21; Case C-300/05
ZVK
[2006] ECR I-11169, paragraph 15; and Case C-466/07
Klarenberg
[2009] ECR I-0000, paragraph 37).
As regards the objective pursued by Regulation No 2027/97, it is clear from recital 1 in its preamble that it aims to improve,
in the framework of the common transport policy, the level of protection of passengers involved in air accidents.
It is also apparent, both from the
travaux préparatoires
in respect of Regulation No 2027/97 and from recitals 3, 5 and 15 in its preamble, that the desire to improve the level of
protection for passengers involved in air accidents takes the form of the introduction of provisions intended to replace,
as regards air transport between the Member States of the Community, certain provisions of the Warsaw Convention, pending
a full review and revision of that convention.
In particular, the Community legislature took the view that the limits of liability of air carriers, as laid down by the Warsaw
Convention, were too low having regard to the economic and social conditions prevailing when Regulation No 2027/97 was drafted.
Accordingly, it sought to increase a number of those limits.
On the other hand, it is clear from recitals 2 and 4 in the preamble to Regulation No 2027/97 and Article 2(2) thereof that,
where the regulation does not preclude the application of the Warsaw Convention in order to raise the level of protection
of passengers, that protection involves the regulation and the system established by the convention being complementary and
equivalent to each other.
Since Article 29 of the Warsaw Convention simply governs a procedural rule for bringing an action for damages against an air
carrier in the event of an accident, it is not in the category of provisions whose application the Community legislature sought
to preclude.
Having regard to the foregoing considerations, the answer to the second question is that Regulation No 2027/97 must be interpreted
as not precluding the application of Article 29 of the Warsaw Convention to a situation in which a passenger seeks to establish
the liability of the air carrier on account of harm suffered by him when flying between Member States of the Community.

The third question
Having regard to the answer given to the first question, it is not necessary to answer the third question.

Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
of those parties, are not recoverable.
On those grounds, the Court (Fourth Chamber) hereby rules:
1.
The Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Warsaw on 12 October
1929, as amended by the four additional protocols signed at Montreal on 25 September 1975, does not form part of the rules
of the Community legal order which the Court of Justice has jurisdiction to interpret under Article 234 EC.
2.
Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents must be interpreted
as not precluding the application of Article 29 of the Convention for the Unification of Certain Rules Relating to International
Carriage by Air, signed at Warsaw on 12 October 1929, as amended by the four additional protocols signed at Montreal on 25
September 1975, to a situation in which a passenger seeks to establish the liability of the air carrier on account of harm
suffered by him when flying between Member States of the European Community.
[Signatures]
*
Language of the case: French.