Opinion of the Advocate General — ECLI:EU:C:2022:47
Date: 2022-01-20
Language of the case: German
Subject matter: Transport
Procedure: Reference for a preliminary ruling
Origin: Austria

summary, that the treads of the stairway were 
perforated/corrugated, which allowed any water to run off quickly and ensured 
that the treads were dry almost immediately. The use of such stairways reduces 
the risk of slipping. The stairway and the treads were in good [Or. 6] technical 
condition and were also not slippery. The defendant claims that it could not be 
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accused of breaching its contractual duty to protect or duty of care or to have 
become tortiously liable. Nor had it – or Vienna International Airport – acted 
culpably or unlawfully. In any event, the defendant claims that it would have been 
reasonable to expect the applicant to use the handrails on the stairway, especially 
if she had just noticed that her husband had almost fallen. It cannot be ruled out 
that the fall also occurred precisely because she was holding her son under or on 
her arm. The defendant also claims that it has not infringed any ancillary 
contractual obligations. It had been possible for the applicant to use the stairway 
without risk. The applicant chose not to seek further treatment in a nearby hospital 
immediately after the incident, despite the medical instructions and advice given 
to her. Instead, she travelled back to Linz, where it appears she did not seek 
treatment until late into the evening of 30 May 2019. In the defendant’s view, it 
cannot be ruled out that the applicant’s injuries were aggravated by the delay in 
treatment or that it was only because of that delay that they reached the degree of 
intensity claimed. As a result, the applicant breached her duty to minimise the 
damage suffered. 
By the contested judgment, Schwechat District Court, ruling at first instance, 
dismissed the form of order sought in its entirety. On the basis of the established 
facts set out above, it considered that, under Paragraph 1295(1) of the ABGB, 
unlawfulness could arise from a breach of a contractual obligation or an obligation 
in tort. The contractual obligations are to be determined by reference to the [Or. 
7] specific agreement. It was unlawful to breach either the principal or the 
ancillary obligations (protection, care, information). Conclusion of a contract of 
carriage by air brings about a contractual obligation to guarantee the safety of 
passengers on the part of the operators of an air carrier. That ancillary contractual 
obligation also includes ensuring that passengers can embark and disembark from 
the aircraft without risk. However, according to settled case-law, the obligations to 
ensure  safety should not be overstretched in such a way as to give rise, in 
practice, to liability that is not provided for by law and is independent of fault. 
Those subject to the obligation to ensure safety therefore need take only those 
measures that can be reasonably expected of them in the perception of the public. 
The use of special non-slip surfaces s at least sufficient to ensure that passengers 
are not injured. The provision of a covered stairway cannot be required. The 
defendant therefore did not breach any obligation to ensure safety. Irrespective of 
that, every pedestrian is required to look where he is going. Having observed, 
prior to her fall, how her husband almost fell in the same place, the applicant did 
not take any precautions to prevent her own fall. It would have been reasonable to 
expect her to pause before continuing and then use the handrail. It would have 
also been possible for her to seek the help of her husband. Her failure to use the 
handrail even though a danger had already been identified had to be regarded as 
being primarily her own fault. [Or. 8] 
The applicant appealed against that judgment to the referring court, requesting 
that the contested judgment be amended to the effect that the form of order sought 
be granted in its entirety. The appellant argues, in essence, that the defendant’s 
liability arose simply from the fact that it did not use covered stairways. The 
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appellant had not provided the exculpatory evidence required of it. Nor could the 
applicant be expected to assume that the steps were so slippery that she could fall 
even if she walked down them particularly carefully. There was therefore no 
reason to assume contributory negligence. 
In its response to the appeal, the defendant contends, in essence, that the 
provision of a covered stairway cannot be required of the defendant. It argues that 
it has not breached an obligation to ensure safety by using an uncovered stairway. 
Obligations to ensure safety must not be overstretched; rather, they must be 
limited to what is reasonable. 
The referring court, sitting as an appellate court, is called on to rule on the 
applicant’s claims at second and final instance. 
[Procedural aspects] […] [Or. 9] […] 
[…] 
As regards the questions referred, it should be noted at this point that, in the 
present case, both the court of first instance and the parties overlooked the fact 
that the defendant’s liability must be assessed by reference to 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 [Or. 10] place of destination were located 
in different Contracting States (Greece, Austria), thus establishing international 
carriage within the meaning of Article 1 of the MC. 
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, meaning 
that the European Court of Justice has jurisdiction to give a preliminary ruling 
concerning its interpretation (CJEU, Case C-6/14, paragraph 33; […]). 
Question 1: 
Pursuant to 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. 
Pursuant 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) 
irrespective of whether it was at fault, whereby it can contest its liability only by 
way of a plea of contributory negligence under Article 20 of the MC. 
Liability under Article 17(1) of the MC is incurred where an ‘accident’ causes a 
personal injury (death or bodily injury); the occurrence of the accident must be a 
conditio sine qua non for the injury. According to the wording of the convention, 
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the decisive factor is therefore the existence of an ‘accident’. Neither the Montreal 
Convention nor the prior Warsaw Convention (‘WC’) contains a definition of this 
term. In accordance with the case-law developed [Or. 11] in relation to the 
Warsaw Convention, it is a sudden event based on an external factor resulting in 
the passenger’s death or injury. The person concerned suffers damage which he 
did not expect […]. 
In the present case, the applicant suffered bodily injury because, while 
disembarking, she fell on the lower third of the mobile disembarkation stairway, 
which was in good condition, whereby the cause of the fall could not be 
established. The question is whether that incident is to be subsumed under the 
concept of ‘accident’ within the meaning of Article 17(1) of the MC. 
In its decision of 19 December 2019 in Case C-532/18, the Court of Justice states: 
Since the concept of ‘accident’ is not defined anywhere in the Montreal 
Convention, reference must be made to the ordinary meaning of that concept in its 
context, in the light of the object and purpose of that convention. 
The ordinary meaning given to the concept of ‘accident’ is that of an unforeseen, 
harmful and involuntary event. 
It is not consistent with the ordinary meaning of the concept of ‘accident’ referred 
to in Article 17(1) of the Montreal Convention or the objectives pursued by that 
convention to make the carrier’s liability subject to the condition that the damage 
is due to the materialisation of a hazard typically associated with aviation or to 
there being a connection between the ‘accident’ and the operation or movement of 
the aircraft. Limiting the obligation on air carriers to pay compensation solely to 
accidents related to a hazard typically associated with aviation [Or. 12] is not 
necessary in order to avoid imposing an excessive compensation burden on air 
carriers. Those carriers may exclude or limit their liability (paragraphs 34, 35, 41 
and 42). Overall, the Court of Justice therefore concluded in that decision that the 
concept of ‘accident’ within the meaning of that provision (Article 17(1) of the 
MC) covers 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. 
Pursuant to the provision of Article 17(1) of the MC, set out above, this must also 
apply to situations which arise – as in the present case – when embarking on or 
disembarking from the aircraft. 
However, the present situation differs from that on which the decision in C-532/18 
was based inasmuch as, in the present case, the fall, and therefore the injury 
suffered by the applicant, was not caused by an object used when serving 
passengers, nor were there any other grounds for attributing liability to the 
defendant, in particular poor condition of the stairway or a breach of its duty of 
care or obligation to ensure safety. 
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Question 2: 
Article 20 of the MC provides that, if the carrier proves that the damage was 
caused or contributed to by the negligence or other wrongful act or omission of 
the passenger, the carrier is to be wholly or partly exonerated from its liability to 
that passenger. [Or. 13] 
In the present case, the applicant failed to hold on to the handrail that was 
available – despite the fact that she had observed her husband’s ‘near fall’. It was 
therefore not possible for her to prevent herself from falling. As a result, the 
applicant therefore at least contributed to her fall herself. In view of the fact that 
the stairway was in good condition – and therefore did not show any signs of 
damage or defects and was not slippery either – and that the injuries suffered by 
the applicant were not caused by an object used when serving passengers, and 
therefore (irrespective of the fact that the fall occurred when disembarking from 
an aircraft) there were no grounds for attributing liability to the defendant, or 
those grounds were only secondary to the applicant’s contributory negligence, the 
question also arises as to whether the applicant’s contributory negligence 
outweighs any liability on the part of the defendant under Article 17(1) of the 
MC – which has not breached  its duty of care or its safety obligations – in such a 
way that liability ceases to exist. 
As it would appear to the referring court that these questions have not yet been 
conclusively clarified in the Court’s case-law, they must be referred to the Court 
for a preliminary ruling. 
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