Proposal for a Council Regulation on air carrier liability in case of accidents (96/C 104/11) (Text with EEA relevance) COM(95) 724 final - 95/0359(SYN) (Submitted by the Commission on 15 February 1996)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 84 (2) thereof,

Having regard to the proposal from the Commission,

Acting in accordance with the procedure set out in Article 189c, in cooperation with the European Parliament,

Having regard to the opinion of the Economic and Social Committee,

Whereas the rules on liability in case 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, whichever may be applicable, whereas the Warsaw Convention is applied worldwide for the benefit of both passengers and air carriers, and must be preserved;

Whereas the rules on the nature and limitation of liability in the event of death, wounding or any other bodily injury suffered by a passenger form part of the terms and conditions of carriage in the air transport contract between carrier and passenger; whereas Council Regulation (EEC) No 2407/92 (1), Regulation (EEC) No 2408/92 (2), as amended by the Act of Accession of Austria, Finland and Sweden, and Regulation (EEC) No 2409/92 (3), have created an internal aviation market wherein it is appropriate that the rules on the nature and limitation of liability should be harmonized;

Whereas the limit set on liability by the Warsaw Convention is too low by today's economic and social standards; whereas in consequence Member States have variously increased the liability limit, thereby leading to different terms and conditions of carriage in the Community;

Whereas in addition the Warsaw Convention only applies to international transport; whereas in the internal aviation market the distinction between national and international transport has been eliminated; whereas it is therefore appropriate to have the same level and nature of liability in both national and international transport;

Whereas the present low limit of liability often leads to lengthy legal actions which damage the image of air transport;

Whereas Community action in the field of air transport should also aim at a high level of protection for the interests of users;

Whereas in order to provide harmonized conditions of carriage in respect of liability of air carrier and, further, in order to ensure a high level of effective protection of air users, action, regard being had to the principle of subsidiarity, can best be addressed at Community level;

Whereas it is appropriate to remove all limits of liability in the event of death, wounding or any other bodily injury suffered by a passenger;

Whereas, in order to avoid situations where victims of unpreventable accidents remain uncovered, carriers should not, with respect to any claim arising out of the death, wounding or other bodily injury of a passenger under Article 17 of the Warsaw Convention, avail themselves of any defence under Article 20 (1) thereof up to the sum of ECU 100 000;

Whereas passengers or next-of-kin should receive a lump sum as soon as possible in order to face immediate needs;

Whereas persons entitled to compensation should have the benefit of legal clarity in the event of an accident; whereas they should be fully informed beforehand of the applicable rules; whereas it is necessary to avoid lengthy litigation or claims processes; whereas it is appropriate in addition to give the person entitled to compensation the option of taking action in the courts of the Member State in which the passenger has his domicile or permanent residence;

Whereas it is desirable in order to avoid distortion of competition that third-country carriers adequately inform passengers of their conditions of carriage;

Whereas the improvement of the situation for luggage and cargo is currently taken care of at International Civil Aviation Organization (ICAO) level and does not require the same urgent treatment as the passengers' situation;

Whereas it is appropriate and necessary that the values expressed in this Regulation be increased in accordance with economic developments; whereas it is appropriate to empower the Commission, after consultation of an advisory committee, to decide upon such increases,

HAS ADOPTED THIS REGULATION:

Article 1

This Regulation defines the obligations of Community air carriers to cover liability in the event of accidents to passengers.

Article 2

1. For the purpose of this Regulation:

(a) 'air carrier` means an air transport undertaking with a valid operating licence;

(b) 'Community air carrier` means an air transport undertaking within the meaning of Council Regulation (EEC) No 2407/92;

(c) 'persons entitled to compensation` means the victims and/or persons who, in the light of the applicable law, are entitled to represent the victims in accordance with a legal provision, a court decision or in accordance with a special contract;

(d) 'lump sum` means an advance payment to the person entitled to compensation to enable him to meet his most urgent needs, without prejudice to the speediest settlement of full compensation;

(e) 'ECU` means the unit of account adopted in drawing up the general budget of the European Communities in accordance with Articles 207 and 209 of the Treaty;

(f) 'Warsaw Convention` means the Convention for the Unification of Certain Rules Relating to International Carriage by Air, signed in Warsaw on 12 October 1929, together with all international instruments which build on and are associated with it;

2. Concepts contained in this Regulation which are not defined in paragraph 1 shall be equivalent to those used in the Warsaw Convention.

Article 3

1. The liability of a Community air carrier for damages sustained in the event of the death, wounding or any other bodily injury suffered by a passenger shall not be subject to any statutory or contractual limits.

2. For any damages up to the sum of ECU 100 000 the Community air carrier shall not exclude or limit his liability by proving that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.

Article 4

1. The carrier shall without delay, and in any event not later than 10 days after the event during which the damage occurred, pay to or make available to the person entitled to compensation a lump sum of up to ECU 50 000 in proportion to the injury sustained and in any event a sum of ECU 50 000 in case of death.

2. The lump sum may be offset against any subsequent sum to be paid in respect of the liability of the Community air carrier, but is not returnable under any circumstances.

Article 5

1. The provisions contained in Articles 3 and 4 shall be included in the Community air carrier's conditions of carriage.

2. Adequate information on the provisions contained in Articles 3 and 4 shall on request be given to passengers at the Community carrier's agencies, travel agencies and check-in counters, and a summary of the requirements shall be made on the ticket document.

3. Air carriers established outside the Community and not subject to the obligations referred to in Articles 3 and 4 shall expressly and clearly inform the passengers thereof, at the time of purchase of the ticket at the carrier's agencies, travel agencies, or check-in counters located in the territory of a Member State. Air carriers shall on request provide the passengers with a form setting out their conditions. The fact that the limit is indicated on the ticket document shall not constitute sufficient information.

Article 6

Once a year Member States' authorities shall notify the list of third-country air carriers not subject to the rules of this Regulation to the Air Transport User Organizations concerned and to the Commission, which shall make that list available to the other Member States.

Article 7

A person entitled to compensation in the case of accidents involving Community air carriers may, in addition to the rights conferred by Article 28 of the Warsaw Convention, bring an action for liability before the courts of the Member State where the passenger has his domicile or permanent residence.

Article 8

The Commission may, in accordance with the procedure laid down in Article 9 (1), decide by Regulation to increase as appropriate the values set out in Articles 3 and 4 if economic developments indicate the necessity of such measures.

Article 9

1. The Commission shall be assisted by a committee of an advisory nature composed of the representatives of the Member States and chaired by the representative of the Commission.

The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft, within a time limit which the chairman may lay down according to the urgency of the matter, if necessary by taking a vote.

The opinion shall be recorded in the minutes; in addition, each Member State shall have the right to ask to have its position recorded in the minutes.

The Commission shall take the utmost account of the opinion delivered by the committee. It shall inform the committee of the manner in which its opinion has been taken into account.

2. Furthermore, the Committee may be consulted by the Commission on any other question concerning the application of the Regulation.

Article 10

This Regulation shall enter into force six months after the date of its publication in the Official Journal of the European Communities.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

(1) OJ No L 240, 24. 8. 1992, p. 1.

(2) OJ No L 240, 24. 8. 1992, p. 8.

(3) OJ No L 240, 24. 8. 1992, p. 15.