Case C‑258/16

Finnair Oyj

v

Keskinäinen Vakuutusyhtiö Fennia

(Request for a preliminary ruling from the Korkein oikeus)

(Reference for a preliminary ruling — Air transport — Montreal Convention — Article 31 — Liability of air carriers for checked baggage — Requirements as to the form and content of the written complaint sent to the air carrier — Complaint made electronically and recorded in the air carrier’s information system — Complaint made on behalf of the person entitled to delivery of checked baggage or cargo by an agent of the air carrier)

Summary — Judgment of the Court (Third Chamber), 12 April 2018

Transport—Air transport—Regulation No 2027/97—Convention for the Unification of Certain Rules for International Carriage by Air—Liability of carriers for checked baggage—Substantive requirements relating to the complaint sent to the air carrier—Need to give notice to that carrier of the damage sustained—No other requirements

Transport—Air transport—Regulation No 2027/97—Convention for the Unification of Certain Rules for International Carriage by Air—Liability of carriers for checked baggage—Requirements relating to the written form of the complaint to the air carrier—Complaint made electronically and recorded in the air carrier’s information system—Complaint recorded into that system on behalf of the passenger by an agent of the air carrier—Lawfulness—Condition—Possibility for the passenger to check the accuracy of the text of that complaint and, where appropriate, to amend or supplement it, or even to replace it, before expiry of the period laid down

Transport—Air transport—Regulation No 2027/97—Convention for the Unification of Certain Rules for International Carriage by Air—Liability of carriers for checked baggage—Requirements relating to the written form of the complaint to the air carrier—Complaint made electronically and recorded in the air carrier’s information system—Lawfulness

Transport—Air transport—Regulation No 2027/97—Convention for the Unification of Certain Rules for International Carriage by Air—Liability of carriers for checked baggage—Requirements of written form and of notice of the complaint to the air carrier—Scope

See the text of the decision. (see paras 20, 21)

Article 31(4) of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded at Montreal on 28 May 1999 and approved on behalf of the European Community by Council Decision 2001/539/EC of 5 April 2001, must be interpreted as meaning that, within the periods referred to in Article 31(2) of that convention, the complaint must be made in writing, in accordance with Article 31(3) thereof, failing which no action may be brought against the carrier. In that regard, first, it is clear from Article 31(2) of the Montreal Convention, inter alia, that, in the case of damage, the person entitled to delivery must complain to the air carrier forthwith after discovering the damage, and, at the latest, within the periods laid down in that provision for baggage and cargo respectively. In addition, under Article 31(3) of the Montreal Convention, every complaint must be made in writing and given or dispatched within the time stipulated for that purpose. Paragraphs 2 and 3 of Article 31 of the Montreal Convention are complementary in nature. While Article 31(2) of that convention merely lays down the periods within which different types of complaint must be sent to the air carrier, Article 31(3) thereof states, first, how such complaints must be addressed to the carrier and, second, in what form those complaints must be made, it being clear that that clarification cannot affect the requirement to comply with the periods set out in Article 31(2). It follows that paragraphs 2 and 3 of Article 31 of the Montreal Convention, read in conjunction, must be interpreted as requiring that a complaint be made in writing and sent to the air carrier within the periods set out in Article 31(2) thereof. Moreover, given the particular relationship between paragraphs 2 and 3 of Article 31 of the Montreal Convention, as set out in paragraph 26 above, a complaint cannot be considered to have been validly sent to the air carrier within the periods stipulated in Article 31(4) thereof if it has not been sent in writing, as required under Article 31(3). (see paras 24-27, 30, 31, operative part 1)

A complaint, such as that at issue in the main proceedings, recorded in the information system of the air carrier, fulfils the requirement of being in a written form under Article 31(3) of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded at Montreal on 28 May 1999. Consequently, the term ‘in writing’, in the context of Article 31 of the Montreal Convention, must be interpreted as referring to any set of meaningful graphic signs, irrespective of whether they are handwritten, printed on paper, or recorded in electronic form. (see paras 35-37, operative part 2)

Article 31(2) and (3) of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded at Montreal on 28 May 1999, must be interpreted as not precluding the requirement of being in a written form from being regarded as fulfilled in the case where, with the knowledge of the passenger, a representative of the air carrier records in writing the declaration of loss either on paper or electronically in the carrier’s information system, provided that that passenger can check the accuracy of the text of the complaint, as taken down in writing and entered in that system, and can, where appropriate, amend or supplement it, or even replace it, before expiry of the period laid down in Article 31(2) of that convention. Although the responsibility for making a complaint lies exclusively with the passenger, it cannot in any way be inferred from the wording of Article 31 of the Montreal Convention that the passenger is nevertheless deprived of the liberty to benefit from the assistance of other persons for the purposes of making his complaint. The option open to a passenger to have recourse to the assistance of other persons also enables him, as in the case in the main proceedings, to secure the assistance of a representative of the air carrier for the purposes of committing his oral statement to writing and having it entered in the information system of the carrier intended for such purposes. It cannot be denied that the respective interests of the passenger and the air carrier, of which the representative is an employee, are different, if not conflicting. The former claims that there has been damage to his baggage, the liability for which is deemed to lie with the latter. However, the objective of protecting the interests of consumers in international carriage by air, and the need to ensure that the representative transcribes the passenger’s oral statement accurately and fairly, can be sufficiently guaranteed by ensuring that the passenger concerned is able to check the accuracy of the text of the complaint, as taken down in writing and entered in the information system by the air carrier’s representative and, where appropriate, amend or supplement or even replace it before expiry of the period provided for in Article 31(2) of the Montreal Convention. (see paras 42, 44-47, operative part 3)