Judgment;Summary — ECLI:EU:C:2021:379
Date: 2021-05-12
Language of the case: German
Court formation: Fourth Chamber
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Austria

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Translation  C-70/20 — 1 
Case C-70/20 
Request for a preliminary ruling 
Date lodged: 
12 February 2020 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
30 January 2020 
Appellant on a point of law: 
YL 
Respondent in the appeal on a point of law: 
Altenrhein Luftfahrt GmbH 
  
In the case of the applicant party YL [Austria] […] against the defendant 
Altenrhein Luftfahrt GmbH, Vienna Airport [Austria] […], seeking EUR 68 858 
plus interest and costs and a finding (value in dispute: EUR 5 000) in the 
proceedings concerning the applicant’s appeal on a point of law against the 
judgment of the Oberlandesgericht Wien (Higher Regional Court, Vienna), sitting 
as an appellate court, of 29 April 2019 […] upholding the judgment of the 
Handelsgericht Wien (Commercial Court, Vienna) of 23 January 2019 […], the 
Oberster Gerichtshof (Supreme Court) has […] made the following 
O r d e r :  
I. The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling under Article 267 TFEU: [Or. 2] 
Does a hard landing, albeit still made within the normal operating range of an 
aircraft, which results in injury to a flight passenger constitute an accident within 
the meaning of Article 17(1) of the Convention for the Unification of Certain 
EN 
REQUEST FOR A PRELIMINARY RULING OF 30. 1. 2020 — CASE C-70/20 
 
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Rules for International Carriage by Air concluded on 28 May 1999 in Montreal, 
signed on 9 December 1999 by the European Community and approved on its 
behalf by Council Decision 2001/539/EC of 5 April 2001? 
II. [Suspension of proceedings] […] 
Grounds :  
1. Facts: 
On 20 March 2014, the applicant was a passenger on one of the flights carried out 
from Vienna to St. Gallen/Altenrhein (Switzerland) by the defendant. During the 
landing, the flight recorder recorded a vertical load of 1.8 g. Such a landing may 
be subjectively perceived as hard. However, having regard also to a measuring 
tolerance viewed from an aeronautical perspective, it was (still) within the 
aircraft’s normal operating range, which, according to the aircraft manufacturer’s 
specifications, extends to 2 g. No failing on the part of the pilot could be 
established. From an aeronautical point of view, a harder landing is more likely 
than a soft one at St. Gallen/Altenrhein airport because of its alpine situation. 
2. Arguments of the parties and forms of order sought: [Or. 3] 
The applicant claims that she sustained a spinal disc injury during the landing and 
seeks compensation pursuant to Article 17 of the Montreal Convention (MC). She 
claims that the ‘hard’ landing constitutes an accident within the meaning of 
Article 17 of the MC. 
The defendant contends that the landing was made within the aircraft’s normal 
operating range. It was therefore a typical event during a flight and not an accident 
within the meaning of Article 17 of the MC. 
3. Proceedings to date: 
The court of first instance dismissed the applicant’s claim, ruling that liability 
under Article 17 of the MC presupposed an accident which could be assumed only 
in the case of an ‘extraordinarily hard landing’. That was not the case here. 
Typical air transport events, such as a hard landing or hard braking, did not justify 
liability because the passenger (by which a typical passenger was clearly meant) 
would be aware of such events and would expect them. 
The appeal court upheld that decision. Although, exceptionally, a hard landing 
might also constitute an accident within the meaning of Article 17 of the MC, this 
presupposed that the tolerance limits specified by the manufacturer for the load on 
the landing gear and load bearing members were clearly exceeded. An 
operationally normal landing, as occurred in this case, could not be regarded as an 
accident. 
ALTENRHEIN LUFTFAHRT 
 
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The Oberster Gerichtshof has to rule on the applicant’s appeal on a point of law 
against that judgment. The applicant still considers that an accident occurred 
which justifies the defendant’s liability. If that is correct, the Oberster Gerichtshof 
would have to set aside the decisions of the lower courts. In that event, the court 
of first instance [Or. 4] would have to establish whether the applicant’s spinal disc 
injury was indeed occasioned by the landing. That question has not been 
examined so far, as the lower courts immediately ruled out the possibility of the 
defendant’s liability owing to the non-existence of any accident. 
4. Legal bases: 
4.1. The defendant’s liability must be assessed in accordance with the 
Convention for the Unification of Certain Rules for International Carriage by Air 
(Montreal Convention, MC). That convention is applicable because the flight’s 
place of departure and place of destination were situated in different Contracting 
States (Austria, Switzerland), with the result that there was international carriage 
for the purposes of Article 1 of the MC. 
4.2. The Montreal Convention was signed by the European Community on 
9 December 1999 and approved on its behalf by Council Decision 2001/539/EC of 
5 April 2001. It (therefore) forms an integral part of the EU legal order, because 
the European Court of Justice has jurisdiction to give a preliminary ruling 
concerning its interpretation (CJEU, judgment of 26 February 2015, Case C-6/14, 
Wucher Helicopter GmbH, EU:C:2015:122). 
4.3. The dispute concerns the interpretation of Article 17(1) of the MC: 
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. 
According to that provision, the carrier is liable up to the maximum limit laid 
down in Article 21(1) of the MC (which is not reached by the applicant’s present 
claim) [Or. 5] irrespective of whether it was at fault, against which liability it can 
claim only contributory negligence under Article 20 of the MC. Article 17 of the 
MC corresponds, in essence, to Article 17 of the Warsaw Convention for the 
Unification of Certain Rules Relating to International Carriage by Air, with the 
result that the case-law relating to that provision can continue to be relied on. 
5. Grounds of the request for a preliminary ruling: 
5.1. The incurring of liability under Article 17(1) of the MC requires a personal 
injury (death or bodily injury) caused by an ‘accident’; the occurrence of the 
accident must be a conditio sine qua non for the injury. The existence of an 
‘accident’ is therefore crucial. That concept is not defined in the convention. The 
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issue which arises is whether it covers a landing which is ‘hard’ but which is (still) 
made within the ‘normal operating range’. This means that the load on the landing 
gear and load bearing members remains below the tolerance limits above which, 
according to the manufacturer, a technical review of the aircraft is necessary. In 
that context, the present Chamber understands ‘hard’ as describing a landing 
which, unlike in the case of a ‘soft’ landing, is not largely absorbed by the 
aircraft’s landing gear and can be perceptibly felt by the passenger. 
5.2. The European Court of Justice held in its decision of 19 December 2019 in 
Case C-532/18, GN, EU:C:2019:1127, paragraph 34, that reference must be made 
to the ‘ordinary meaning’ of the concept of ‘accident’, which, in that context, was 
an ‘unforeseen, harmful and involuntary event’ (‘un évènement involontaire 
dommageable imprévu’). That wording seems to indicate that it depends on the 
[Or. 6] passenger’s expectation of the event (‘imprévu’ (unforeseen’), not 
‘imprévisible’ (‘unforeseeable’). The US Supreme Court uses similar wording to 
that of the European Court of Justice. It understands an ‘accident’ to be an 
‘unexpected or unusual event or happening that is external to the passenger’ (Air 
France v. Saks [1986], https://supreme.justia.com/cases/federal/us/470/392/). At 
least according to that wording (‘or’), it is sufficient that the event was 
unexpected, it did not also have to be unusual. Decisions of the German 
Bundesgerichtshof which focus (solely) on the ‘suddenness’ of the event also 
appear to point in the same direction [...]. 
Such terminology could be understood to mean that what matters is not the 
objective unpredictability or unusualness of the event causing the injury but solely 
that the event came from outside, happened suddenly and the passenger did not 
expect it (see Lord Scott in House of Lords, Deep Vein Thrombosis and Air Travel 
Group Litigation [2005] UKHL 72, paragraph 14: ‘It is important to bear in mind 
that the “unintended and unexpected” quality of the happening in question must 
mean “unintended and unexpected” from the viewpoint of the victim of the 
accident. It cannot be to the point that the happening was not unintended or 
unexpected by the perpetrator of it or by the person sought to be made responsible 
for its consequences. It is the injured passenger who must suffer the “accident” 
and it is from his perspective that the quality of the happening must be 
considered.’). 
According to that (broad) interpretation, there would therefore be no accident only 
where the injury was caused by the [Or. 7] normal operation of the aircraft, 
without there being any occurrence of a sudden and, for the passenger, surprising 
event. That is particularly the case where normal cabin pressure results in injury 
(Air France v. Saks: Loss of hearing; Deep Vein Thrombosis and Air Travel 
Group Litigation: Thrombosis). On the other hand, even light or moderate 
turbulence (which, as such, is neither unusual nor unforeseeable) may be 
classified as an accident in respect of injuries caused by it. […]. The same should 
probably also apply to a hard landing which (as here), although it (still) comes 
within the aircraft’s normal operating range, occurs suddenly and unexpectedly 
ALTENRHEIN LUFTFAHRT 
 
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and (according to the applicant’s assertions, which are still to be examined) results 
in a corporal injury. 
5.3. On the other hand, French case-law focuses, in particular, on the 
unpredictability of the event (Cour de cassation […]: ‘évènement extérieur, 
soudain et imprévisible’). It would therefore have to be an event which is not only 
external (‘extérieur’), sudden (‘soudain’) and unexpected from the passenger’s 
viewpoint, but also unforeseeable (‘imprévisible’), and therefore objectively 
unusual. Consequently, there would be no compensation for injuries which arise 
from events which occur as part of the aircraft’s normal and foreseeable operation 
(see, to that effect, Advocate General Saugmandsgaard Øe, Opinion in Case 
C-532/18, point 44, who, though, also interprets the US and German case-law to 
that effect). [Or. 8] 
A similar interpretation is also advocated in the German legal literature: Liability 
could not be based on typical, operationally necessary and accepted events […]. A 
hard landing could therefore be classified as an accident only where the tolerance 
limits specified by the manufacturer for the load on the landing gear and load 
bearing members had been clearly exceeded […]. 
The District Court for the Southern District of New York […] and the Landgericht 
Düsseldorf […] decided to that effect that the airline was not liable in the case of a 
‘routine landing’ (District Court) or a landing made ‘within the bounds of 
normality’ (Landgericht). 
5.4. The latter position is clearly based on the assessment that events which (still) 
form part of an aircraft’s normal operation do not generally result in an injury, 
even if they occur suddenly and unexpectedly. That is particularly the case for 
‘hard landings’ (see Truitt, Plain Talk about Plane Claims: An Air Carrier Claims 
Examinees Handbook, Journal of Air Law and Commerce […]: ‘… airplanes are 
not as strong as people — meaning that if a hard landing did not hurt the airplane, 
it would not have been capable of harming occupants.’). If an injury does, 
however, occur, this is generally attributable to the passenger’s particular 
disposition, which is a further [Or. 9] cause of the injury additional to the event. 
Such a disposition would not, then, come within the airline’s area of risk (see in 
general, to that effect, Advocate General Saugmandsgaard Øe, Opinion in Case 
C-532/18, point 44). 
6. The Oberster Gerichtshof considers that that position is, in principle, to be 
preferred. Although it has the effect that the tolerance limits specified by the 
aircraft manufacturer indirectly determine the interpretation of the concept of 
‘accident’, it strikes an appropriate balance between the interests of the passenger 
and those of the airline, prevents liability from being limitless (see judgment in 
Case C-532/18, paragraph 37) and also has the advantage of simplicity by virtue 
of the linkage to specific tolerance limits. However, in the absence, for the above 
reasons, of an acte clair, the Oberster Gerichtshof, as the court of last instance, is 
required to submit a request for a preliminary ruling.  
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II. [procedural statement] […] 
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