OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered on 11 March 2020 ( 1 )

Case C‑86/19

SL

v

Vueling Airlines SA

(Request for a preliminary ruling

from the Juzgado de lo Mercantil (Commercial Court, Spain))

(Reference for a preliminary ruling — International carriage by air — Montreal Convention — Liability of air carriers in respect of baggage — Fact of loss of checked baggage established — Compensation — Conditions for the award of the maximum amount of compensation — Burden of proof — Requisite standard of proof — Nature of the requisite evidence — Procedural autonomy of the Member States — Principles of equivalence and effectiveness)

1. It is not difficult to imagine the disgruntlement — and above all inconvenience — caused to a passenger when the airline he has been travelling with announces that it has lost his checked baggage. Nonetheless, can it be said that that loss necessarily constitutes the most serious kind of damage to baggage, justifying the award to the passenger, where the fact of loss is established, of the maximum amount provided for by the Convention for the Unification of Certain Rules for International Carriage by Air, signed in Montreal on 28 May 1999 (‘the Montreal Convention’), ( 2 ) by way of compensation for the damage suffered, and in such a case, is the passenger relieved of the burden of proof? That is the crux of this reference for a preliminary ruling.

I. Legal background

A. The Montreal Convention

2. In the third paragraph of the preamble to the Montreal Convention, the States Parties ‘[recognise] the importance of ensuring protection of the interests of consumers in international carriage by air and the need for equitable compensation based on the principle of restitution’.

3. The fifth paragraph of the preamble states that ‘collective State action for further harmonisation and codification of certain rules governing international transport by air through a new Convention is the most adequate means of achieving an equitable balance of interests’.

4. Article 3(3) of the Montreal Convention provides that ‘the carrier shall deliver to the passenger a baggage identification tag for each piece of checked baggage’.

5. Article 17(2) and (3) of the Montreal Convention are worded as follows: ‘2. The carrier is liable for damage sustained in case of destruction or loss of, or of damage to, checked baggage upon condition only that the event which caused the destruction, loss or damage took place on board the aircraft or during any period within which the checked baggage was in the charge of the carrier. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect, quality or vice of the baggage. In the case of unchecked baggage, including personal items, the carrier is liable if the damage resulted from its fault or that of its servants or agents. 3. 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.’

6. Article 22 of the Montreal Convention is headed ‘Limits of Liability in Relation to Delay, Baggage and Cargo’. Article 22(2) reads as follows: ‘In the carriage of baggage, the liability of the carrier in the case of destruction, loss, damage or delay is limited to 1000 Special Drawing Rights [‘SDR’] for each passenger unless the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless it proves that the sum is greater than the passenger’s actual interest in delivery at destination.’

7. In accordance with the procedure set out in Article 24 of the Montreal Convention, the liability limit provided for in Article 22(2) of that convention was raised to 1131 SDR, with effect from 30 December 2009.

B. European Union law

8. The Montreal Convention was approved on behalf of the European Community by Council Decision 2001/539/EC 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), ( 3 ) and entered into force, as regards the European Union, on 28 June 2004.

9. After the Montreal Convention had entered into force in the Union, Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002 ( 4 ) was adopted, amending Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents (‘Regulation No 2027/97 as amended’). ( 5 )

10. Article 1 of Regulation No 2027/97 as amended now provides that ‘this Regulation implements the relevant provisions of the Montreal Convention in respect of the carriage of passengers and their baggage by air and lays down certain supplementary provisions. It also extends the application of these provisions to carriage by air within a single Member State’.

11. Article 3(1) of Regulation No 2027/97 as amended stipulates that ‘the liability of a Community air carrier in respect of passengers and their baggage shall be governed by all provisions of the Montreal Convention relevant to such liability’.

II. The main proceedings, the question referred for a preliminary ruling and procedure before the Court

12. On 18 September 2017, SL travelled from Ibiza (Spain) to Fuerteventura (Spain), transferring in Barcelona (Spain). The flight was operated by Vueling Airlines SA. That company admits the loss of baggage which had been properly checked in by SL. SL has accordingly brought an action seeking compensation in the sum of 1131 SDR (about EUR 1400) for the material and non-material damage suffered as a result of the loss of her baggage. In her claim, SL gives no indication as to the composition or weight of the lost baggage, makes the bald assertion that it was necessary to purchase clothing and essentials, and quantifies her loss at 1131 SDR, without providing any supporting evidence whatsoever. While Vueling Airlines admits that the baggage was lost, it has offered SL only EUR 250, by way of compensation for unproven damage.

13. It is apparent from the request for a preliminary ruling that the Spanish courts have taken different views as to whether the maximum sum is automatically payable where it is established that the baggage was in fact lost, without consideration of any evidence provided by the passenger in question, or whether, on the other hand, the amount payable to the passenger is to be determined by the court, on the basis of the evidence he has provided.

14. In those circumstances, Juzgado de lo Mercantil (Commercial Court, Spain) decided to stay the proceedings and, by decision received at the Court Registry on 6 February 2019, referred the following question to the Court for a preliminary ruling: ‘Where the loss of a suitcase has been established, must the airline compensate the passenger in each and every case with the maximum compensation limit of 1131 SDR, since that is the most serious of the situations provided for in Articles 17(2) and 22(2) of the Montreal Convention, or is that maximum compensation limit one which can be adjusted by the court, including in the event of loss of a suitcase, in the light of the circumstances, so that the amount of 1131 SDR will be awarded only if the passenger establishes, by whatever means are permitted in law, that the value of the items and personal effects he was carrying in the checked baggage, and of those which he had to purchase to replace them, came to that limit, or, failing that, may other criteria be taken into account, such as, for example, the weight of the suitcase or whether the baggage was lost on the outbound or return journey, for the purposes of assessing the non-material damage caused by the inconvenience arising from the loss of the passenger’s baggage?’

15. Written observations were submitted by Vueling Airlines, the German Government, the Netherlands Government, and the European Commission.

16. At the hearing held before the Court on 15 January 2020, SL, Vueling Airlines, the German Government and the Commission presented oral argument.

III. Analysis

17. The question referred can be broken down into two issues. The first is whether the sum of 1131 SDR referred to in Article 22(2) of the Montreal Convention is an upper limit on the compensation to be awarded, or whether it is a fixed sum to be awarded automatically by the court to a passenger whose baggage has been lost. The second relates to the question of who bears the burden of proof, and the standard of proof that the court can demand of a passenger where he is required to establish the damage suffered as a result of his baggage being lost. As requested by the Court, this Opinion will focus on the second issue.

A. Preliminary observations

18. I have preliminary observations to make on two aspects of the matter. The first relates to the fact that the Court has jurisdiction to interpret the Montreal Convention. The second concerns Vueling Airlines’ submissions that the Court ought to hold the present reference for a preliminary ruling to be inadmissible.

19. First, as regards the jurisdiction of the Court, it should be noted that the Montreal Convention was signed by the European Community on 9 December 1999 and approved on its behalf by the Council of the European Union on 5 April 2001. It entered into force, as regards the Union, on 28 June 2004. It is well established in the case-law that, as from that date, the Montreal Convention has been an integral part of the Union legal order and, accordingly, the Court has jurisdiction to give a preliminary ruling concerning its interpretation. ( 6 ) The Court must be guided in the process of interpretation by Article 31 of the Vienna Convention on the Law of Treaties, of 23 May 1969, which states that a treaty must be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose. ( 7 )

20. Secondly, as regards the admissibility of the request for a preliminary ruling, Vueling Airlines essentially submits that the provisions which the Court is asked to interpret — namely Articles 17(2) and 22(2) of the Montreal Convention — are perfectly clear, and that the answer to the referring court’s question can be found in the Court’s existing case-law. In that regard, it should be noted that the claimed existence of previous case-law is not a ground for holding a reference for a preliminary ruling to be inadmissible. In any event, as I have already mentioned, the question before the Court raises two distinct issues, and Vueling Airlines would appear to be seeking to disguise the fact that the issue of the requisite standard of proof has not arisen previously.

21. Furthermore, I would note that questions concerning the interpretation of EU law which are referred by the national court, against the legal and factual background which it is responsible for setting out, enjoy a presumption of relevance, and that the Court may refuse to rule on a question referred for a preliminary ruling from a national court only where it is quite obvious that the interpretation of Union law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. ( 8 ) That does not apply in the present case.

22. For all of those reasons, Vueling Airlines’ argument that the present reference for a preliminary ruling is inadmissible must be rejected.

B. Whether the compensation limit of 1131 SDR is a ceiling or a fixed sum

23. SL maintains, on the basis that the fact of loss of her baggage has been established, and that loss is the most serious kind of damage that can be caused to baggage, that the referring court is obliged to make an automatic award to her in the sum of 1131 SDR, which is to be understood, reading Articles 17(2) and 22(2) of the Montreal Convention together, as a fixed sum.

24. I would simply observe that it is apparent from the terms of the Montreal Convention that, while Article 17(2) of that convention establishes the principle that the air carrier is liable in the event of destruction, loss or damage to checked baggage, that liability is subject to the ‘limits’ ( 9 ) laid down in Article 22, and Article 22(2) expressly provides that ‘the liability of the carrier in the case of destruction, loss, damage or delay [in the transport of baggage] is limited to [1131] SDR’. ( 10 ) This the same reading of the Montreal Convention that is reflected in the reference by the EU legislature, in recital 12 of Regulation No 889/2002, and with regard to that convention, to ‘uniform liability limits for loss of, damage to, or destruction of, baggage’. ( 11 )

25. The Court has also held that the purpose of Article 22(2) of the Montreal Convention is to ‘limit the liability of air carriers’ ( 12 ) and that ‘the resulting limitation of compensation must be applied “per passenger”’. ( 13 ) In the Court’s view, it is a matter of imposing a clear limit on compensation. ( 14 ) The Court has thus held that ‘a limitation of the compensation so designed enables passengers to be compensated easily and swiftly, yet without imposing a very heavy burden of damages on air carriers, which would be difficult to determine and to calculate, and would be liable to undermine, and even paralyse, the economic activity of those carriers’. ( 15 ) It has also held that ‘the limit of an air carrier’s liability for the damage resulting from the loss of baggage, laid down in that article, is, in the absence of any declaration, an absolute limit which includes both non‑material and material damage’. ( 16 )

26. Finally, and most importantly, the first issue arising from the question referred by the national court is unequivocally answered in paragraph 34 of the judgment in Espada Sánchez and Others, ( 17 ) where the Court held that ‘as regards baggage, the limit laid down constitutes, pursuant to Article 22(2) of the Montreal Convention, a maximum limit for compensation, which cannot therefore accrue automatically and in full to any passenger losing his baggage’. ( 18 )

C. The burden of proof and the requisite standard of proof

27. Once the principle has been established that the court is to fix the amount of compensation, subject to a limit of 1131 SDR, the issue arises, under the second part of the question referred, of how it is to determine the amount of compensation, and what evidence it is to require the passenger to produce for this purpose.

28. The referring court describes a difference of views between the Spanish judges, some of whom consider that, where it is established that the baggage has in fact been lost, the maximum sum can be awarded to the passenger with no requirement for evidence as to the actual content of the baggage. Those judges take the view that a requirement for such evidence would impose a probatio diabolica on the passenger. Other judges take the contrary view that the passenger is in no different a position from any other party claiming damages. On that view, the fact that the baggage has been lost is not a sufficient basis for awarding the maximum sum, and it is incumbent on the passenger to prove the nature and value of the contents.

29. It will be recalled that, in the main proceedings, SL relies simply on the undisputed fact that her baggage was lost, without describing its contents, producing evidence as to the value of the replacement items and effects she was obliged to purchase, or stating the weight of the baggage. In those circumstances, Vueling Airlines proposes to pay her EUR 250 in compensation.

30. Before turning to this issue in more detail, I must say that I am inclined to accept that no reasonably diligent passenger would have kept the proof of purchase for every packed item, or taken a photo of the contents of the baggage thinking that it might prove useful in the event of difficulties. Without amounting to a probatio diabolica, proof might undeniably be difficult. Furthermore, the compensation awarded, even if it is in the maximum sum, may turn out not to represent full compensation of the passenger, bearing in mind that, as mentioned above, the Montreal Convention provides for limited liability on the part of air carriers. ( 19 ) This is particularly so given the fact that the compensation is supposed to provide ‘restitution’ not only in respect of the material damage suffered, but also in respect of the non-material damage. ( 20 ) It must nevertheless be acknowledged that the system of air carrier liability provided for by the Montreal Convention reflects a judgment reached by its drafters as to how to achieve ‘an equitable balance of interests’, ( 21 ) which it is not for the Court to revisit. It must also be acknowledged that a happy medium has to be found between a requirement for the passenger to produce evidence in respect of every item contained in the lost baggage and the approach taken by SL, who has not produced any evidence whatsoever.

31. That said, while the Montreal Convention establishes the principle of air carrier liability in cases (amongst others) of lost baggage, it says nothing about the circumstances in which such liability arises or can be invoked. Similarly, it says nothing about the evidence to be provided by the passenger.

32. However, as the Montreal Convention is an integral part of Union law, especially given that it has been implemented by Regulation No 2027/97 as amended, the Member States are required, when implementing its rules in their turn, to observe the other principles of Union law. In other words, since neither the Montreal Convention nor Regulation No 2027/97, as amended, set out the precise conditions of air carrier liability for lost baggage, it is for the Member States to determine those conditions in accordance with the principle of procedural autonomy. ( 22 ) It is therefore for the Member States to lay down procedural rules as regards legal proceedings brought with a view to enforcing passenger rights which derive from the Montreal Convention. Such rules may not be less favourable than those governing similar domestic situations (principle of equivalence) and may not render impossible in practice or excessively difficult the exercise of rights conferred by the European Union legal order (principle of effectiveness). ( 23 ) The question whether those principles have been duly observed must be answered by reference to the role of the rules concerned in the proceedings as a whole, the way in which the proceedings are conducted and the special features of those rules, before the various national bodies. ( 24 )

33. It does not seem to me that, as it presently stands, Union law goes any further than that in shaping the rules of evidence applicable to proceedings in which passengers seek compensation for damage suffered as a result of the loss of their baggage. There is no legal basis for SL’s position to be found in Union law, and the Court did not state that the passenger was to be relieved of the burden of proof when it held (in a case, it must be acknowledged, where the question had not been directly raised) that under Article 22(2) of the Montreal Convention, it is for the passengers concerned, subject to review by the national court, to establish to the requisite legal standard the contents of the lost baggage. ( 25 )

34. Since the file does not provide details of the rules of evidence applicable to the main proceedings, it will be for the referring court to assess the national procedural rules in the light of the principles of equivalence and (above all) effectiveness, as referred to above.

35. It nevertheless appears from the wording of the question referred that the national court considers it open to the passenger to demonstrate the damage suffered by whatever means are permitted in law. Without attempting an exhaustive list, this would accordingly include the production of documentary evidence (such as a photograph, till receipt or invoice, etc.) as well as witness evidence. It is for the court hearing the matter to assess the probative value of the evidence before it, considered as a whole. It may also have regard to the weight of the baggage, if national law so permits and if the weight is known. ( 26 ) Similarly, as regards the assessment of non-material damage, the referring court appears to consider that the loss of baggage will have more severe consequences if it occurs on the outbound rather than the return flight. This is undoubtedly a matter which can be taken into account. In an area which very much requires a case-by-case approach, however, I would not go as far as to state as an absolute proposition that loss on the outbound flight causes more inconvenience than loss on the return flight. For example, if personal effects with a certain sentimental value are lost, it seems to me that the resulting non-material damage is the same whether the loss occurs on the outbound or the return flight.

36. The considerations above clearly illustrate the need for a case-by-case approach to proceedings in which passengers seek compensation for damage suffered as a result of the loss of their baggage, as well as the fundamental difficulty in fitting the rules of evidence into a predefined framework, given the extent to which individual cases may vary. The matter must therefore be left to be assessed by the national court, which is best placed to apply the rules of evidence defined by national law, while satisfying itself that they do not make it impossible or excessively difficult to exercise the right to compensation provided for by Articles 17(2) and 22(2) of the Montreal Convention.

37. It follows from the foregoing that, subject to the ceiling of 1131 SDR, it is for the national court to determine the amount to be awarded to the passenger by way of compensation for the material and non-material damage suffered as a result of the loss of his checked baggage. While it is incumbent on the passenger to produce the necessary evidence to establish the damage he has suffered, it is for the national court to satisfy itself that the applicable national rules do not make it impossible or excessively difficult to exercise the right to compensation provided for by Articles 17(2) and 22(2) of the Montreal Convention.

IV. Conclusion

38. In the light of all the foregoing considerations, I propose that the Court should answer the question referred for a preliminary ruling by the Juzgado de lo Mercantil (Commercial Court, Spain) as follows: (1) Articles 17(2) and 22(2) of the Convention for the Unification of Certain Rules for International Carriage by Air, signed in Montreal on 28 May 1999, are to be interpreted such that the maximum amount of compensation provided for in cases of destruction or loss of checked baggage, or damage to checked baggage, constitutes a ceiling, and accordingly does not become automatically payable, as a fixed sum, to any passenger whose checked baggage is lost. (2) It is for the national court, subject to the maximum of 1131 SDR, to determine the amount to be awarded to the passenger by way of compensation for the material and non-material damage suffered as a result of the loss of his checked baggage. While it is incumbent on the passenger to produce the necessary evidence to establish the damage he has suffered, it is for the national court to satisfy itself that the applicable national rules do not make it impossible or excessively difficult to exercise the right to compensation provided for by Articles 17(2) and 22(2) of the Montreal Convention.

( 1 ) Original language: French.

( 2 ) OJ 2001 L 194, p. 39.

( 3 ) OJ 2001 L 194, p. 38.

( 4 ) OJ 2002 L 140, p. 2.

( 5 ) OJ 1997 L 285, p. 1.

( 6 ) See judgment of 12 April 2018, Finnair (C‑258/16, EU:C:2018:252, paragraph 20 and the case-law cited). See also judgment of 22 November 2012, Espada Sánchez and Others (C‑410/11, EU:C:2012:747, paragraph 20 and the case-law cited).

( 7 ) See judgment of 12 April 2018, Finnair (C‑258/16, EU:C:2018:252, paragraph 21 and the case-law cited). See also judgment of 22 November 2012, Espada Sánchez and Others (C‑410/11, EU:C:2012:747, paragraphs 20 to 22 and the case-law cited).

( 8 ) See, amongst many others, judgment of 31 January 2017, Lounani (C‑573/14, EU:C:2017:71, paragraph 56).

( 9 ) See the heading to Article 22 of the Montreal Convention. My italics.

( 10 ) My italics.

( 11 ) My italics.

( 12 ) Judgment of 6 May 2010, Walz (C‑63/09, EU:C:2010:251, paragraph 34). My italics.

( 13 ) Judgment of 6 May 2010, Walz (C‑63/09, EU:C:2010:251, paragraph 34). My italics.

( 14 ) See judgment of 6 May 2010, Walz (C‑63/09, EU:C:2010:251, paragraph 35).

( 15 ) Judgment of 6 May 2010, Walz (C‑63/09, EU:C:2010:251, paragraph 36). My italics.

( 16 ) Judgment of 6 May 2010, Walz (C‑63/09, EU:C:2010:251, paragraph 38). My italics.

( 17 ) Judgment of 22 November 2012 (C‑410/11, EU:C:2012:747).

( 18 ) My italics.

( 19 ) Except where the passenger has made, at the time when the checked baggage was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires — see Article 22(2) of the Montreal Convention.

( 20 ) See judgment of 6 May 2010, Walz (C‑63/09, EU:C:2010:251, paragraph 39). The compensation provided for by the Montreal Convention is precisely that — the convention expressly provides that ‘punitive, exemplary or any other non-compensatory damages shall not be recoverable’ (Article 29 of the Montreal Convention; see also the third paragraph of the preamble to that convention).

( 21 ) Fifth paragraph of the preamble to the Montreal Convention.

( 22 ) See, by analogy, judgment of 12 December 2019, Aktiva Finants (C‑433/18, EU:C:2019:1074, paragraph 29 and the case-law cited).

( 23 ) See, by analogy, judgment of 12 December 2019, Aktiva Finants (C‑433/18, EU:C:2019:1074, paragraph 29 and the case-law cited).

( 24 ) See, by analogy, judgment of 11 September 2019, Călin (C‑676/17, EU:C:2019:700, paragraph 31).

( 25 ) See judgment of 22 November 2012, Espada Sánchez and Others (C‑410/11, EU:C:2012:747, paragraph 35).

( 26 ) On the basis of the oral submissions addressed to the Court at the hearing, it appears that the airline registers the individual weights of items of checked baggage. However, even supposing that the weight is known, either by the airline or the passenger himself, it is not necessarily decisive — ultimately, the weight of clothing says nothing about its price.