Opinion of the Advocate General — ECLI:EU:C:2017:1016
Date: 2017-12-20
Language of the case: Finnish
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Finland

summary, I find no explicit requirement in the Montreal Convention that a written complaint has to be made on paper; and see no convincing reason why writing on electronic media should not qualify as a ‘written’ complaint as long as the writing in question satisfies the purposes that underlie the requirement. 45. True, some additional measure of practicability and some form of general requirement that the parties act in good faith must be interpreted into the provisions of the Montreal Convention on notification of claims. If carriers are to deal with passengers’ complaints expeditiously, certain forms of written notification of complaints (for example, on a slab of rock or a clay tablet) may be less useful than others. (10) Conversely, a complaint that for all practical purposes fulfils the purposes of the requirement of written form should not be disregarded for the lack of a physical piece of paper. Thus, the interpretation of the term ‘in writing’ must, I think, sensibly take into account the purpose of the requirement, issues of practicability and common usage at the time of the relevant facts. It cannot without leading to absurd results ignore the way in which businesses normally do business with their customers. 46. Today it is normal business practice in many sectors of the economy to scan and to store documents in electronic form only, generating print-outs on paper of those documents only as and when specifically required. 47. Finnair has not suggested that ‘writing’ onto the hard-drives of its information system fails to serve the purposes of permanency and retrievability as adequately as writing onto a piece of paper. The latter is comparable with a properly backed-up computer system in terms of perishability; and is arguably more likely to be misplaced or lost than an electronic file that can be searched for on the relevant electronic medium. It has likewise not been suggested that an electronic ‘paper trail’ is inferior to a paper trail on ‘hard copy’ (that is, on paper) for the purposes of documenting when information concerning damage to checked baggage was notified to the carrier and any subsequent amendments or additions thereto. 48. In my view, if the necessary information regarding damage to checked baggage has been written onto a medium of permanence from which it can be retrieved and which is in the carrier’s possession and under its control, that should suffice for the claim to be considered to be ‘in writing’ for purposes of the Montreal Convention. It should not matter in this respect whether the storage medium for the complaint is paper and the means of retrieval comprises going to a physical archive, pulling out a drawer and extracting the paper copy, or whether the medium is a computer hard drive and the means of retrieval is to open the relevant file and read it on a computer screen (or print it out onto paper). 49. In the present case, a physical claims certificate, printed on paper, was issued by Finnair and given to the passenger, who used it in her claim against her insurance company. Under my analysis, it is not necessary for that document to be produced in order for the claim to have been made in writing. The conversion into writing of the information Ms Mäkelä-Dermedesiotis gave to the Finnair customer service representative over the telephone happened when that representative entered the information into Finnair’s information system. However, the fact that the same or another Finnair customer service agent, by clicking on the ‘print’ button, could issue a paper certificate that could (and did) serve as a proof of the claim vis-à-vis the passenger’s insurance company underlines the fact that Finnair had all the necessary information regarding the claim available in written form. 50. Consequently, I suggest that the Court’s answer to the second question should be that Article 31(3) of the Montreal Convention should be interpreted as meaning that the requirement as to writing may be fulfilled in an electronic procedure, including by registration of the passenger’s claim in the carrier’s information system. The third question 51. By its third question the referring court asks, in essence, whether the requirements of Article 31 of the Montreal Convention are satisfied if the carrier’s customer service representative records the complaint in writing, be it on paper or electronically in the carrier’s information system, on behalf of the passenger. 52. It is uncontested that the Finnair customer service representative recorded the information given by Ms Mäkelä-Dermedesiotis in Finnair’s information system. Thus, the passenger was both the source of the information and the substantive author of the complaint. Subsequently, Finnair issued a certificate to Ms Mäkelä-Dermedesiotis, which it sent to her. It is unclear whether Finnair retained a paper copy of that certificate for its files. 53. Whereas the referring court’s second question was concerned with ‘what does “in writing” mean?’, its third question addresses the issue: ‘does the passenger have himself to put the complaint into writing; or is it sufficient that the complaint be put into writing on his initiative and under his direction?’ 54. The text of Article 31 of the Montreal Convention does not say in terms that the complaint ‘must be made in writing by the passenger’. Rather, Article 31(2) states that, ‘In the case of damage, the person entitled to delivery must complain to the carrier [within certain strict time limits]’; and Article 31(3) confines itself to requiring that, ‘Every complaint must be made in writing and given or dispatched within the times aforesaid’. (11) I accept that the French text, by following the usual rules of French legal drafting (which tends to use nouns rather than verbs) and using the noun ‘protestation’ in both Article 31(2) and Article 31(3), comes closer to implying that the passenger himself must create the complaint (the ‘protestation’) in written form which is then ‘remise ou expédiée’ (given or dispatched) to the carrier. However, the English text, through its use of verbs, is more flexible. The verb ‘must complain’ in Article 31(2) indicates merely that the complaint must originate with ‘the person entitled to delivery’ (the subject of that verb). The verb ‘be made’ in Article 31(3) has the passenger’s complaint as its subject. That does not automatically lead to the conclusion that the complaint must have been created in writing by the passenger himself. Rather, it describes what must exist at the end of the complaint process (namely, a complaint in writing) in order for the complaint to be valid. 55. The different language versions of the Montreal Convention are equally authentic. (12) Applying Article 31 of the VCLT, Article 31 of the Montreal Convention is to be ‘interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the [convention] in their context and in the light of [the convention’s] object and purpose’. It seems to me that the actual wording leaves scope for exploring whether a complaint originating with the passenger but rendered into written form by someone else may be regarded as a valid complaint if such a reading better satisfies the object and purpose of the Montreal Convention in the conditions of the 21st century. 56. Here, I also note that the convention does not stipulate that the complaint must be signed; or require the use of registered mail (or some other specific form of delivery) in order to provide proof of the origin of the complaint. Indeed, the convention does not require the complaint to be posted at all: Article 31(3) merely states that the complaint must be ‘given or dispatched’. Nor does the convention regulate how to prove the content and timing of a claim if the parties subsequently disagree on those issues (or indeed, disagree as to whether a complaint has been made at all). All that is left to the procedural rules of the Contracting States. The complaint simply serves to state the passenger’s claim to the carrier. It does not appear to have other any legal effect. 57. Thus, nothing in the actual wording of the Montreal Convention specifically bars a passenger from enlisting someone else’s assistance to transform the complaint that he wishes to make into written form. 58. Let us begin with two obvious illustrations. 59. Passenger A is a businessman. On unpacking his checked baggage after a business trip, he notes with displeasure that it has been broken into and that several items have disappeared. The following day, he calls his secretary into his office and dictates the necessary information to her as a curt letter. She types it out. He initials the bottom of the printout (illegibly) and tells her to send it off. She scans the printout and emails it to the airline. 60. Passenger B flies to a remote destination to begin a fortnight’s trekking holiday. He arrives late at night and when he retrieves the rucksack that he checked in, he finds that it has been damaged. No one is at the desk marked ‘information’ and his onward transport is about to depart. There is a large sign in international English saying, ‘Bag problem? Ring [a telephone number]’. He scribbles down the number and, the following morning (while he still has a signal), uses his mobile phone to contact the ground handling staff to lodge his complaint. The customer service agent enters the information into the airline’s computerised database and sends a text message with an attachment to passenger B’s mobile phone, with a copy to his email. 61. Passenger A’s complaint has been processed electronically by a person acting under his immediate direction, printed out, then reconverted into electronic form and dispatched. Does that invalidate it? Should it make any difference if the businessman signed the letter in full rather than initialling it (or did not sign it at all), or if the secretary sent it by registered mail? 62. Passenger B found himself in a situation in which it was in practical terms impossible for him personally to render his complaint into writing and dispatch it to the airline within seven days of receipt of his damaged rucksack. Airlines frequently use ground handling staff to deal with problems about lost baggage at airports where they do not have a physical presence. The ground handling staff were not there when passenger B’s flight arrived; but there was a contact number. Passenger B duly did exactly what he was invited to do to lodge his complaint within time with the ground handling staff for onward transmission to the carrier. 63. In both of my illustrations, the complaint clearly originates with the passenger. It is the passenger’s complaint. It has merely been transformed into writing by someone else. As a result, there is now a clear written record of the content of the complaint. It seems to me that that satisfies the object and purpose of the Montreal Convention. Put more formally: it should suffice for the purposes of Article 31(3) of the Montreal Convention that the writing is done on behalf ofthe passenger or upon instruction by the passenger, so that the information underlying the complaint clearly comes from the passenger and the complaint entered actually corresponds to the passenger’s claim. 64. I see no reason why the representative of a carrier should not be able to record the claim in writing on behalf of the passenger. Businesses, including airline companies, routinely perform services for their customers — sometimes in return for payment made for that specific act but frequently in connection with the performance of other services or the delivery of goods that the customer has paid for. Such assistance not infrequently includes helping customers with complaints. (13) 65. A passenger may legitimately expect the carrier’s customer service representative to act in good faith and enter the complaint in written form in the carrier’s information system for the treatment of complaints — and, a fortiori, when the carrier’s customer service department issues a certificate as confirmation of the entry in the computerised system. 66. The facts of the present case are not unusual. Within the time limits specified, a passenger calls the customer services of a carrier on a telephone number provided by the carrier for that purpose to give notice of a claim for damaged baggage. The carrier’s customer service representative on behalf of the passenger writes down and processes the information given by the passenger (normally, today, electronically). All the necessary elements are present for the carrier to safeguard its interests. The carrier’s own representative, recording the information given by the passenger, is hardly likely to exaggerate the claim to the latter’s benefit. A typical passenger travelling as a consumer would not, I think, expect to be required to undertake the (prima facie pointless) additional exercise of then setting down in writing exactly the same information as the carrier’s customer service representative has just entered in the carrier’s information system and dispatching it himself to the carrier. 67. Although it is ultimately a matter for the national court as sole judge of fact, it seems to me that in such circumstances there is a valid claim made in writing under Article 31 of the Montreal Convention. 68. Finally, I observe that a purposive interpretation of Article 31 of the Montreal Convention accords with the objective of consumer protection identified in the third recital thereof and with the consumer-friendly approach adopted by the Court in its interpretation of passengers’ right to compensation from airlines under Regulation (EC) No 261/2004 (the Air Passengers Regulation). (14) 69. I therefore suggest that the Court’s answer to the third question should be that the requirements of Article 31 of the Montreal Convention are satisfied if the carrier’s customer service representative records the complaint in writing, be it on paper or electronically in the carrier’s information system, on behalf of the passenger. The fourth question 70. By its fourth question, the referring court asks whether Article 31 of the Montreal Convention subjects a complaint to further substantive requirements than that of giving notice to the carrier of the damage sustained. 71. It suffices to observe that Article 31 of the Montreal Convention (as its title indicates) deals exclusively with what constitutes ‘timely notice of complaints’. It is thus concerned solely with the conditions precedent that must be satisfied for an action to lie against the carrier (namely, that the complaint must be lodged within time and in writing). If those conditions are not satisfied, then — save in the case of fraud on the part of the carrier — no action shall lie (Article 31(4)). Where those conditions are satisfied, an action against the carrier will be admissible. If the carrier contests the claim, whether that action will, in due course, succeed or fail will depend on the observance of applicable procedural and evidential rules and the material placed before the court seized of the case. But none of those matters are addressed by Article 31 of the Montreal Convention. 72. I therefore consider that the answer to the fourth question referred should be that Article 31 of the Montreal Convention does not subject the admissibility of a complaint to substantive requirements other than that notice to the carrier should be given within the time limits and in the form specified by that article. Conclusion 73. In the light of all the above considerations, I suggest that in answer to the questions referred by the Korkein oikeus (Supreme Court, Finland), the Court should rule as follows: (1) An action against a carrier for damage to checked baggage is barred under the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed at Montreal on 28 May 1999, where a complaint has been made within the time limits laid down by Article 31(2), but fails to satisfy the condition of being made ‘in writing’ within the meaning of Article 31(3) thereof. (2) Article 31(3) of the Montreal Convention should be interpreted as meaning that the requirement as to writing may be fulfilled in an electronic procedure, including by registration of the passenger’s claim in the carrier’s information system. (3) The requirements of Article 31 of the Montreal Convention are satisfied if the carrier’s customer service representative records the complaint in writing, be it on paper or electronically in the carrier’s information system, on behalf of the passenger. (4) Article 31 of the Montreal Convention does not subject the admissibility of a complaint to substantive requirements other than that notice to the carrier should be given within the time limits and in the form specified by that article. 1 Original language: English. 2 Regulation of 9 October 1997 on air carrier liability in respect of the carriage of passengers and their baggage by air (OJ 1997 L 285, p. 1), as 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). 3 Decision of 5 April 2001 on the conclusion by the European Community of the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention) (OJ 2001 L 194, p. 38). 4 Article 3(2) provides that ‘any other means which preserves [certain information regarding the places of departure and destination and, where applicable, stopping places] may be substituted for the delivery of the document [of carriage]. If any such other means is used, the carrier shall offer to deliver to the passenger a written statement of the information so preserved’. 5 See judgment of 6 May 2010, Walz, C-63/09, EU:C:2010:251, paragraph 20 and the case-law cited. 6 See, to that effect, judgment of 6 May 2010, Walz, C-63/09, EU:C:2010:251, paragraphs 21 and 22 (the passages cited deal with the definition of the term ‘damage’ in Article 22 of the Montreal Convention). 7 Signed in Vienna on 23 May 1969 (United Nations Treaty Series, vol. 1155, p. 331). 8 See judgment of 6 May 2010, Walz, C-63/09, EU:C:2010:251, paragraph 23 and the case-law cited. 9 Article 17(3) simply states that if the carrier admits the loss of the checked baggage, or if the checked baggage has not arrived at the expiration of 21 days after the date on which it ought to have arrived, the passenger is entitled to enforce against the carrier the rights which flow from the contract of carriage, without providing any limitation on the timing or form of the complaint, other than the limitation of actions provided for in Article 35, which provides for the extinction of the right to damages if an action is not brought within a two-year period. 10 Students of the English common law have long delighted in the (fictional) story of Mr Albert Haddock, who settled his tax bill with HM Inland Revenue by writing a cheque for the sum due on the back of a cow (Board of Inland Revenue v Haddock: the case of the negotiable cow). First published in the satirical magazine Punch as part of the author’s series of Misleading Cases in the Common Law, it later acquired almost legendary status as part of a collection of similarly acute parodies: see A.P. Herbert, Uncommon Law (Methuen, 1935) — or, if that is not readily to hand, https://en.wikipedia.org/wiki/Board_of_Inland_Revenue_v_Haddock. 11 The French text has ‘En cas d’avarie, le destinataire doit adresser au transporteur une protestation immédiatement après la découverte de l’avarie …’ (Article 31(2)) and ‘Toute protestation doit être faite par réserve écrite et remise ou expédiée dans le délai prévu pour cette protestation’ (Article 31(3)). Since the grammatical structure of Spanish is, in this respect, similar to that of French, it is unsurprising that the Spanish text likewise uses the same noun (‘una protesta’) in both Article 31(2) and Article 31(3) (‘… el destinatario deberá presentar … una protesta …’ and ‘Toda protesta deberá hacerce por escrito y darse o expedirse dentro de los plazos mencionados’, respectively). 12 The convention was done ‘in the English, Arabic, Chinese, French, Russian and Spanish languages, all texts being equally authentic’. 13 See, for example, the description found in Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, Customer Service Representatives, available on the Internet at https://www.bls.gov/ooh/office-and-administrative-support/customer-service-representatives.htm (visited 30 October 2017). Under the heading ‘What Customer Representatives Do’, that manual states: ‘Customer service representatives interact with customers to handle complaints, process orders, and provide information about an organisation’s products and services’ (emphasis added). 14 Regulation 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 (OJ 2004 L 46, p. 1). See, in particular, judgments of 19 November 2009, Sturgeon and Others, C‑402/07 and C‑432/07, EU:C:2009:716, and of 23 October 2012, Nelson and Others, C‑581/10 and C‑629/10, EU:C:2012:657.