Opinion of the Advocate General — ECLI:EU:C:2023:19
Date: 2023-01-12
Language of the case: German
Subject matter: External relations;Transport
Procedure: Reference for a preliminary ruling
Origin: Austria

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Translation  C-510/21 – 1 
Case C-510/21 
Request for a preliminary ruling 
Date lodged: 
19 August 2021 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
5 August 2021 
Applicant: 
DB 
Defendant: 
Austrian Airlines AG 
  
[…]        2 Ob 19/21i 
[…] 
The Oberster Gerichtshof (Supreme Court, Austria), sitting as the court ruling on 
appeals on points of law […], in the case of the action brought by the applicant, 
DB, […] Vienna 7, […] against the defendant, Austrian Airlines AG, […], 
concerning EUR 10 196 […] and a declaratory judgment (value in dispute: 
EUR 10 000), in proceedings concerning the appeal on a point of law lodged by 
the applicant against the judgment of the Oberlandesgericht Wien (Higher 
Regional Court, Vienna), sitting as the court ruling on appeals on the merits, of 
28 October 2020, GZ 1 R 121/20a-14, by which the judgment of the 
Handelsgericht Wien (Commercial Court, Vienna) of 17 June 2020, GZ 20 Cg 
30/19v-10, was confirmed, has made, in closed session, the following 
O r d e r: 
EN 
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I. The following questions are referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to Article 267 TFEU: 
1. Is first aid which is administered on board an aircraft following an accident 
within the meaning of Article 17(1) of the Convention for the Unification of 
Certain Rules for International Carriage by Air, signed by the European 
Community on 9 December 1999 and approved on its behalf by Council Decision 
2001/539/EC of 5 April 2001 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 that 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 the convention? 
II. […] [stay of proceedings] 
G r o u n d s: 
1 Facts underlying the decision to be given: 
2 On a flight from Tel Aviv to Vienna which was operated by the defendant on 
18 December 2016, a jug fell from a serving trolley that was being manoeuvred 
through the rows of seats. As a result, the applicant was scalded with hot coffee. 
3 2. Arguments of the parties and forms of order sought: 
4 In his action brought on 31 May 2019, the applicant seeks payment of 
EUR 10 196 […] and a declaration establishing the defendant’s liability for all 
future damage arising from the accident. He submitted that he suffered severe 
burns. The defendant is liable for the negligent conduct of its staff, that is to say, 
not only for the carelessness that caused the accident, but also for the inadequate 
first aid administered on his injuries. In that respect, Austrian law on 
compensation is applicable, in accordance with which the claims would not be 
time-barred. 
5 The defendant contested the claim and argued that the applicant’s injuries had 
been treated properly. Moreover, the claim should be dismissed in view of the 
two-year limitation period that applies. 
6 3. Procedure to date: 
7 The court of first instance dismissed the claim. It considered that the Warsaw 
Convention is relevant to the case, because Israel has not ratified the Montreal 
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Convention (‘the MC’). It held that, since claims for compensation could only be 
brought within a limitation period of two years, the claim must be dismissed. 
8 The appellate court confirmed that decision, referring to the fact that Israel ratified 
the MC on 19 January 2011 and that that convention is therefore applicable. 
According to the Court of Justice of the European Union, the concept of ‘accident’ 
within the meaning of Article 17(1) of the MC also covers incidents not involving 
a hazard typically associated with aviation. It has stated that liability under that 
provision extends, in principle, to all personal injuries caused by the accident, 
provided that the occurrence of the accident is a conditio sine qua non for the 
injury. Only a truly exceptional course of events – which does not exist in the 
present case – is not covered. The applicant’s injuries were caused by an accident 
on board the aircraft – even if the associated physical harm could have potentially 
been reduced or avoided by properly administered first aid. His claim for 
compensation was therefore covered by the scope of the MC and was time-barred 
as a result of the two-year limitation period laid down in Article 35 of the MC. 
9 The Supreme Court is required to rule on the applicant’s appeal on a point of law 
against that judgment. The applicant continues to argue that first aid is a cause of 
damage which is to be assessed separately and refers in that regard to decisions of 
United States courts in which first aid administered on board an aircraft was not 
qualified as an accident within the meaning of Article 17 of the MC. He submits 
that Austrian law is therefore applicable in that respect and the claim for 
compensation is not time-barred. 
10 4. Legal basis: 
11 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; ‘the MC’). The application of that convention results from the fact 
that the flight’s place of departure and place of destination were located in 
different States Parties (Israel, Austria), thus establishing international carriage 
within the meaning of Article 1 of the MC. 
12 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 Court of Justice of the European Union has jurisdiction to give a preliminary 
ruling concerning its interpretation (CJEU, Case C-6/14, Wucher Helicopter 
GmbH). 
13 4.3. This is not precluded by the fact that the flight’s place of departure was not on 
the territory of a Member State of the European Union. According to Article 3(1) 
of Council Regulation (EC) No 2027/97 of 9 October 1997, as amended by 
Regulation (EC) No 889/2002 of the European Parliament and of the Council of 
13 May 2002 on air carrier liability in respect of the carriage of passengers and 
their baggage by air, the liability of a Community air carrier in respect of 
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passengers and their baggage is to be governed by all provisions of the Montreal 
Convention relevant to such liability. The air carrier against which proceedings 
have been brought in the present case is a Community air carrier, that is to say, an 
air carrier with a valid operating licence granted by a Member State 
(Article 2(1)(b) of the regulation). 
14 4.4. The interpretation of the following provisions of the Montreal Convention is 
in dispute: 
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. 
Article 29 of the MC: 
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. In any such action, punitive, exemplary or any other non-
compensatory damages are not to be recoverable. 
15 4.5. One of the limits of liability referred to in Article 29 of the MC arises from 
Article 35 of the MC: 
(1) 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, 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 that period shall be determined by the law 
of the court seised of the case. 
16 4.6. Under Austrian law, the injured party can in principle assert his or her claims 
for compensation against the injuring party within three years (Paragraph 1489 of 
the Allgemeines Bürgerliches Gesetzbuch – Austrian General Civil Code; ‘the 
ABGB’). Therefore, in the event that Austrian law, rather than the MC, is 
applicable to the claim for compensation for certain, distinguishable consequences 
of the injury, his or her action would not be time-barred in that respect. 
17 5. The first question referred: 
18 5.1. The incurring of liability under Article 17(1) of the MC requires a personal 
injury caused by an ‘accident’; the occurrence of the accident must be a conditio 
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sine qua non for the injury […]. In its decision in Case C-532/18, GN, the Court 
of Justice interpreted the concept of ‘accident’ within the meaning of Article 17(1) 
of the MC as covering all situations occurring on board an aircraft in which an 
object used when serving passengers has caused bodily injury to a passenger, 
without it being necessary to examine whether those situations stem from a hazard 
typically associated with aviation. 
19 5.2. Therefore, there is no doubt that the scalding of the applicant by a jug of 
coffee that fell from a serving trolley – the incident which initiated the event – is 
to be qualified as an accident within the meaning of Article 17(1) of the MC. 
20 However, the question arises as to whether inadequate first aid subsequently 
administered on board the aircraft constitutes a harmful event which is to be 
established separately from the scalding that preceded it or whether the two 
occurrences are to be subsumed under the concept of ‘accident’ within the 
meaning of Article 17(1) of the MC as a single event. In the second case, there 
would be no doubt that the applicant’s claim would be precluded under Article 35 
of the MC. Recourse to national law would not be possible under any 
circumstances in that eventuality. 
21 5.3. The referring court takes the view that the concept of causality in the sense of 
the conditio sine qua non, which, according to the very wording of Article 17(1) 
of the MC, underlies that provision, militates in favour of subsumption under a 
single event – even without recourse to the respective rules on causality 
requirements in the Member States. If the initiating accident is removed from the 
equation, the first aid and thus the alleged aggravating damage would not exist 
either. 
22 5.4. However, it was not possible to find any statements by the Court of Justice of 
the European Union or commentary in the (German) legal literature that address 
that question, aside from general considerations relating to causality and adequacy 
[…]. Nevertheless, Schmid […] states that the causal link is not ‘interrupted’ by 
the mere fact that the bodily injury is attributable to a trauma triggered by an 
accident. 
23 5.5. Although numerous decisions of US courts […] have dealt with medical 
emergencies, the need for first aid in those cases arose without a further accident 
within the meaning of Article 17(1) of the MC […]. As far as can be seen, none of 
these decisions concern medical care necessitated by a previously occurring 
accident within the meaning of Article 17(1) of the MC. They are therefore not 
directly transferable to the present case. 
24 5.6. However, the US Supreme Court also held as follows in Olympic Airways v 
Husain, 540 U.S. 644 (2004), 9: ‘There are often multiple interrelated factual 
events that combine to cause any given injury. […] any one of these factual events 
or happenings may be a link in the chain of causes and – so long as it is not 
unusual or unexpected – could constitute an “accident” under Article 17’. 
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Accordingly, it could also be argued here that one ‘link in the chain’, namely the 
falling of the jug of coffee from the serving trolley, was an accident that is 
sufficient to lead to the assessment of the entire ‘chain of causes’ as an accident 
within the meaning of Article 17(1) of the MC. 
25 5.7. The referring court takes the view that the intention, scheme and harmonising 
nature of the MC also militate against a separate linking of the accident and the 
subsequent first aid, since the purpose of the provisions of the convention is to 
create a uniform liability regime intended to make recourse to national law 
unnecessary (see the fifth paragraph of the preamble to the MC: ‘… for further 
harmonization and codification …’). 
26 5.8. However, it cannot be completely ruled out that the falling of the jug of coffee 
and the first aid subsequently administered on board the aircraft could also be 
regarded as independent causes of damage, which might not preclude a different 
linking of the events – at least not in the sense of an ‘acte clair’. 
27 The Court of Justice of the European Union is therefore asked for clarification on 
this question. 
28 6. The second question referred: 
29 6.1. In the event that, on the basis of the answer to the first question, separate 
harmful events are to be assumed, the question arises as to the interpretation of 
Article 29 of the MC – as was the case in the referring court’s request for a 
preliminary ruling in case 2 Ob 13l/20h. 
30 Whereas Article 17(1) of the MC expressly refers to bodily injury caused by an 
accident, Article 29 of the MC provides, in a general manner, which is not limited 
only to ‘accidents’, that ‘in the carriage of passengers […], any action for 
damages, however founded, […] can only be brought subject to the conditions and 
such limits of liability as are set out in this Convention’. 
31 6.2. Two views on Article 29 of the MC are expressed in the German-language 
legal literature. According to the ‘superseding solution’ (Verdrängungslösung), 
the provision excludes, from the outset, claims for compensation founded on other 
legal bases (Schmid in Giemulla/Schmid, Frankfurter Kommentar zum 
Luftverkehrsrecht, Article 29 of the MC, paragraphs 2 and 3, referring in 
particular to US Supreme Court, El Al v Tseng, 525 U.S. 155). By contrast, 
according to the ‘umbrella solution’ (Rahmenlösung), the bases of claims under 
the convention exist alongside those under national law; the latter are subject to 
the ‘conditions and […] limits of liability’ of the convention, but are not excluded 
in principle […]. 
32 6.3. Irrespective of this, however, it is first necessary to clarify the question as to 
whether Article 29 of the MC also covers personal injuries sustained without the 
occurrence of an accident or (as would be the case here if Question 1 is answered 
in the negative) independently of an accident as an independent harmful event. If 
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it does cover such injuries, both the ‘superseding solution’ and the ‘umbrella 
solution’ would lead to the outcome that there is no liability under national law in 
this specific case, because, in that eventuality, the limitation period under 
Article 35 of the MC would be applicable in any event. 
33 Therefore, even if Question 1 were answered in the negative, claims under 
national law could exist in the present case only if the convention were to be 
interpreted as not covering, from the outset, damage that occurs independently of 
an accident as an independent harmful event. This is clearly the view taken by the 
applicant. 
34 6.4. In the El Al v Tseng decision already cited above […], the US Supreme Court 
stated, in essence, that the convention contains an exhaustive set of rules and that, 
therefore, no compensation whatsoever is payable in the case of physical 
impairments suffered during a flight that are not caused by accidents. This has 
been followed by numerous other US courts […]. The same would have to apply 
in the present case if (in the event that Question 1 is answered in the negative) the 
damage suffered by the applicant due to the alleged improper response of the 
cabin crew were to be regarded as an independent harmful event. 
35 6.5. If, on the other hand, it is assumed that the convention does not cover 
personal injuries that occurred without an accident or (as would be the case here if 
Question 1 is answered in the negative) independently of an accident as an 
independent harmful event, Article 29 of the MC would always have to be 
construed in conjunction with Article 17 of the MC. The ‘limits’ of liability 
prescribed by Article 29 of the MC would therefore be applicable only if damage 
resulting from of an accident is claimed. 
36 Were that view to be accepted, and Question 1 were answered in the negative (and 
an independent harmful event is assumed), this would lead to the unrestricted 
application of national law (with regard, in the present case, to damage resulting 
from inadequate first aid). This is in line with, for instance, the view expressed by 
Reuschle […], who considers that, where claims for compensation are derived 
from the contract of carriage in conjunction with supplementary national rules, the 
limitation of liability laid down in the provision applies only to damage that is 
regulated in the MC and therefore not, for example, to claims arising from ‘bodily 
damage not caused by an accident’. 
37 In the present case, that view would lead to the application of Austrian law to 
damage resulting from the allegedly deficient treatment administered by the cabin 
crew. Claims based on such damage would not be time-barred under Austrian law, 
with the result that further evidence and findings would be necessary in that 
respect in order to clarify the defendant’s liability to pay compensation. 
38 6.6. If Question 1 is answered in the negative, the question therefore arises as to 
whether Article 29 of the MC subjects all claims resulting from physical injury 
sustained by a passenger between the points at which he or she embarks and 
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disembarks the aircraft to the limitations of the convention provided for in that 
provision and – in the context of the present case – in particular to the limitation 
period under Article 35 of the MC, or whether this applies only to physical 
injuries resulting from accidents within the meaning of Article 17(1) of the MC. 
39 The Court of Justice of the European Union is therefore asked for clarification on 
this question also, should the need arise. 
40 7. Stay of proceedings: 
[…]