Amended proposal for a COUNCIL REGULATION (EC) ON AIR CARRIER LIABILITY IN CASE OF ACCIDENTS
Date: 1996-12-10
Institutions: European Commission
Subjects: air transport, damages, international convention, liability, transport accident

COMMISSION  OF THE  EUROPEAN  COMMUNITIES 

* 

it 

Tir 

* 

Brussels,  10.12.1996 
COM(96) 663 final 

95/0359  (SYN) 

Amended  proposal  for  a 

COUNCIL  REGULATION  (EC) 

ON AIR  CARRIER  LIABILITY  IN CASE OF ACCIDENTS 

(presented  by the Commission  pursuant to Article  189 a (2) 
of the EC-Treaty) 

Explanatory  memorandum 

During  the  plenary  session  on  17  September  1996  the  European  parliament  approved  the 
proposal for a Council Regulation presented by the Commission on air carrier liability in case 
of  accidents1.  It  also  adopted  a certain  number  of  amendments  to  the  text  put  forward. 

The  Commission  accepted  the  amendments  1  and  2  introducing  new  recitals  since  they 
express  in  a  cautious  wording  the  need  for  the  revision  of  the  Warsaw  Convention  at 
multilateral  level  and  the  role,  nevertheless,  that  a  Community  action  could  play  in  such 
negotiations,  serving  as  a spur  for  a global  solution. 

It  also  accepted  the  amendment  concerning  recital  9  since  it  increases  the  level  of  strict 
liability  from  ECU  100,000  to  ECU  120,000. 

It accepted the amendment related to recital  13 since it reaffirms  with stronger  wording  than 
the  original  Commission's  proposal,  the  necessity  to  revise  the  cargo  and  luggage  liability 
systems. 

It  accepted  the  amendments  related  to  recital  14  and  article  8  since  it  introduces  a  more 
precise  wording,  replacing  "values"  by  "financial  amounts". 

The Commission  accepted the amendment related  to recital  10 since  it clarifies  the need  for 
advance  payments. 

Likewise it adopts the amendment related to article 7 since it clarifies  the nature of the action 
to  be  brought  before  a  court,  it  also  defines  the  domicile  at  the  moment  the  accident 
occurred. 

The  Commission  also  partially  accepted  the  amendments  concerning: 

Recital  12 and  article  6  in  so  far  as  a  commitment  to  apply  the  Regulation  will  be 
introduced  in negotiations  with  third  countries. 

Article  2.1)  c)  and d)  as far  as the  removal  of  the  lump sum  and  the new  definition 
of  persons  entitled  to compensation  are  concerned. 

i 

COM(95)  724  final  of  20.12.1995 

Article 4  since it introduces more flexibility  for  the advance payment. 

Article 5.2)  since it reinforces  the right of information  of air transport users. 

The  Commission  can  accept  in  principle,  subject  to  some  redrafting  the  following 
amendments concerning: 

Recital 8 and article 3.1)  in so far as they make clear that only the monetary liability 
limits are concerned by this Regulation. 

Article  1 which clarifies  the scope of the Regulation. 

Article  3.2)  since  it  increases  the  level  of  strict  liability  from  100,000  Ecu  to 
120,000. 

A new art.7A which considers  the possibility  of récourse  for  carriers 

A new article 9A since it requests  an evaluation report by 1999. 

AMENDED PROPOSAL  FOR A 
COUNCIL  REGULATION 
ON  AIR  CARRIER  LIABILITY  IN CASE OF ACCIDENTS 

Whereas  a  full  review  and  revision  of  the 
Warsaw  Convention  is  long  overdue  and 
would  represent,  in  the  long  term,  a  more 
uniform  and  applicable  response,  on  an 
international  level,  to  the  issue  of  airline 
liability 
in  case  of  accidents:  whereas 
efforts  to  increase  the  limits  of  liability 
imposed by the Warsaw  Convention  should 
continue  through  negotiation  at  multilateral 
level: 

Whereas  Community  action  is  nevertheless 
still  desirable,  to  improve  the  level  of 
compensation  available  to  passengers  and 
could  serve  as  a  guideline  for  improved 
passenger  protection  on a global  scale: 

Unchanged 

Whereas  the  rules  on  liability  in  case  of 
accidents  are  governed  by  the  Convention 
the  Unification  of  Certain  Rules 
for 
Relating  to  International  Carriage  by  Air 
signed  at  Warsaw,  12  October  1929, 
hereafter  called  the  Convention,  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; 

the  rules  on  the  nature  and  Unchanged 

Whereas 
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  Regulations 
(EEC)  NT 2407/922,  2408/923, as amended 
the  Act  of  Accession  of  Austria, 
by 
Finland  and  Sweden,  and  2409/924  have 
created  an internal aviation market  wherein 
it is appropriate  that the rules  on the nature 
and 
liability  should  be 
harmonized; 

limitation  of 

Whereas  the  limit  set  on  liability  by  the  Unchanged 
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; 

Unchanged 

in 

Whereas 
the  Warsaw 
addition 
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; 

Unchanged 

2  OJ  N*  L 240,  28.8.1992,  pi 

3  OJ  N'  L 240, 28.8.1992,  p 8 

4  OJ  N * L 240, 28.8.1992,  p 25 

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

Whereas  in  order  to  provide  harmonized 
conditions  of carriage  in respect  of  liability 
in  order  to 
of  air  carrier  and,  further, 
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 
defense  under  article  (20) §1  thereof  up  to 
the  sum  of  ECU  100,000; 

Unchanged 

Whereas  it  is  appropriate  to  remove  all 
monetary  limits  of  liability  in  the  sense  of 
article  22(1)  of  the  Warsaw  Convention  or 
any  other  legal  or  contractual  limits  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 
defense  under  article  (20) §1  thereof  up  to 
the  sum  of  ECU  120.000:  whereas  under 
article  21  of  the  Warsaw  Convention,  a 
court  can  wholly  or  partly  exonerate  a 
carrier  from  his  liability  if  the  carrier 
proves  the  contributory  negligence  of  the 
victim. 

Whereas  passengers  or  next-of-kin  should  Whereas  prompt  advance  payments  can 
receive  a  lump  sum  as  soon  as  possible  in  considerably  assist  the  injured  passengers 
or  next-of-kin  in  meeting  the  immediate 
order  to  face  immediate  needs; 
costs  following  an air  accident; 

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  process; 
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  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  process; 
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  had 
his domicile  at the  time  of  the  accident: 

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

Unchanged 

Whereas  it  is  desirable  in  order  to  ensure 
as  a  broad  protection  as  possible  for  the 
passengers,  that  the  Community  shall  seek 
to  incorporate  in  civil  aviation  agreements 
with  third  countries  provisions  similar  to 
those  outlined  in this  Regulation; 

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; 

aiming 

Whereas,  for  consistency  and  coherence. 
the 
action 
Community 
improvement  and  harmonisation  of 
the 
liability  of  carriers  for  lost  or  damaged 
luggage  and  cargo  will  also  need  to  be 
addressed; 

at 

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 
after 
empower 
consultation  of  an  advisory  committee,  to 
decide upon such  increases, 

the  Commission, 

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

it 

Article 1 

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

This  Regulation  defines  the  obligations  of 
Community  air  carriers  to  cover  liability 
for  damage  sustained  in  the  event  of  death 
or  wounding  of  a  passenger  or  any  other 
bodily injury  suffered  by a passenger,  if the 
accident  which  caused  the  damage 
so 
sustained  took  place  on  board  the  aircraft 
or  in the course  of any of the operations  of 
embarking  or  disembarking. 

Article 2 

1.  For  the purpose  of  this  Regulation: 

1.  For  the purpose  of  this  Regulation: 

a)  "air  carrier"  means  an  air  transport  Unchanged 
undertaking  with  a valid  operating  license; 

b)  "Community  air  carrier"  means  an  air 
the  sense  of 
transport  undertaking 
Council  Regulation  (EEC)  N° 2407/92; 

in 

Unchanged 

to  compensation" 
c)  "persons  entitled 
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; 

to  compensation" 
c)  "persons  entitled 
means  a passenger  and,  in the event  of  the 
death  of  the  passenger,  any  natural  person 
entitled  to claim  in  respect  of  that  death  in 
accordance  with  applicable  law: 

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

the  unit  of  account  Unchanged 

e)  "ECU"  means 
adopted  in  drawing  up  the  general  budget 
in 
the  European  Communities 
of 
accordance  with articles 207 and 209 of the 
Treaty. 

f) 
the 
"Warsaw  Convention"  means 
Convention  for  the  Unification  of  certain 
Rules  relating  to  International  Carriage  by 
Air,  signed  in  Warsaw  on  12  October 
international 
1929, 
instruments  which  build  on  and  are 
associated  with  it; 

together  with  all 

the 

••  f) 
"Warsaw  Convention"  means 
Convention  for  the  Unification  of  certain 
Rules  relating  to  International  Carriage  by 
Air,  signed  in  Warsaw  on  12  October 
the  Warsaw  Convention  as 
1929 :  or 
amended  at  the  Hague  on  28  September 
1955:  and  the  Convention  Supplementary 
to 
done  at 
Guadalajara  on  18  September  1961  -
whichever  is  applicable  to  the  passenger's 
contract  of  carriage; 

the  Warsaw  Convention 

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

Unchanged 

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. 

of 

the 

amount 

1.  The 
pecuniary 
compensation  that a Community  air  carrier 
has  to  sustain  in  the  event  of  the  death, 
wounding  or  any  other  bodily 
injury 
suffered  by  a passenger  in case  of  accident 
shall  not  be 
legal, 
to  any 
subject 
conventional  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. 

2.  For  any damages up to the sum of  ECU 
120.000  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. 

3.  If the carrier  proves that the damage was 
caused  bv  or  contributed 
the 
negligence  of  the  injured  person  the  court 
may,  in  accordance  with  the provisions  of 
its  own  law,  exonerate  the  carrier  wholly 
or  partly  from  his  liability. 

to  by 

Arrtrit  4 

1.  The  carrier  shall  without  delay,  and  in 
any  event  not  later  than  ten  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. 

1.  The  carrier  shall  without  delay,  and  in 
any  event  not  later  than  ten  days  after  the 
to 
the  person 
identity 
compensation  has  been  established  make 
such  advance payments  as may be  required 
to meet  immediate  economic  needs. 

entitled 

of 

2.  The  payments  under  paragraph  1  shall 
not  constitute  recognition  of  liability  and 
may  be  offset  against  any  subsequent  sums 
paid  on  the  basis  of  the  Community  air 
carrier 
liability,  but  are  not  returnable 
under  any  circumstances. 

Article  5 

1. The  requirements  contained  in articles  3  Unchanged 
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 
travel 
agencies  and  check-in  counters,  and  a 
summary  of  these  requirements  shall  be 
made on the ticket  document. 

agencies, 

carrier's 

2.  Adequate  information  on  the  provisions 
contained  in  articles  3  and  4  shall  on 
request  be  given  to  passengers  at  the 
Community 
travel 
agencies  and  check-in  counters,  and  a 
summary  of  these  requirements,  in  plain 
and  intelligible  language,  shall  be  printed 
on the  ticket  document. 

agencies, 

carrier's 

10 

to 

inform 

subject 

and  not 

3.  Air  carriers  established  outside  the 
Community 
the 
obligations  referred  to  in  articles  3  and  4 
shall  expressly  and  clearly 
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 
the 
carriers 
passengers  with  a  form  setting  out  their 
conditions.  The  fact 
is 
indicated  on  the  ticket  document  does  not 
constitute  sufficient  information. 

shall  on  request  provide 

limit 

that 

the 

inform 

the 
3*.î  Air  carriers  established  outside 
Community,  operating  to.  from  and  within 
the  Community  and  not  subject  to  the 
obligations  referred  to  in  articles  3  and  4 
the 
shall  expressly  and  clearly 
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 
the 
passengers  with  a  form  setting  out  their 
conditions.  The  fact 
is 
indicated  on  the  ticket  document  does  not 
constitute  sufficient  information. 

request  provide 

shall  on 

limit 

that 

the 

Article 6 

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

and 

to 

1.  Once  a year  Member  States'  authorities 
shall  notify  the  list  of  third  country  air 
carriers  not  subject  to  the  rules  of  this 
Regulation  and  operating 
to.  from  and 
within the Community, to the Air Transport 
User  Organisations  concerned  and  to  the 
Commission,  which 
them 
available  to the other  Member  States. 

shall  make 

2.  Whenever the Commission  shall  conduct 
negotiations 
in  relevant  fields  of  civil 
aviation  with  third  countries  on  behalf  of 
the Community,  it shall seek to  incorporate 
the  provisions  of  this  Regulation  into  the 
Agreements. 

Article 7 

A  person  entitled  to  compensation  in  the 
case of accidents  involving  Community  air 
carriers  may,  in  addition  to  the  rights 
conferral  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. 

An  action  for  damages  in  the  case  of 
accidents involving  Community air carriers 
may,  in addition  to  the  rights  conferred  by 
article  28  of  the  Warsaw  Convention,  be 
brought  before  the  courts  of  the  Member 
State where the passenger  at the time of the 
accident  had  his  domicile. 

11 

Article 7A 

In  the  event  of  death,  wounding  or  anv 
bodily  injury  suffered  by  a  passenger, 
nothing  in this  Regulation  shall 
a) imply that a Community  air carrier  is the 
sole  party  liable to pay  damages  or 
b)  restrict  anv  rights  of  a  Community  air 
carrier  to  contribution  or  indemnity  from 
anv  other  party 
in  accordance  with 
applicable  law. 

Article 8 

The  Commission  may,  after  consulting  the  The  financial  amounts 
to  in 
advisory  Committee  established  according  articles  3  and  4  may  be  increased  as 
increase  as  appropriate,  according  to the procedure  set 
to  article  9,  decide 
in  article  9  § 2  if  economic  developments 
appropriate the values referred  to in articles 
3  and  4  if  economic  developments  indicate 
indicate  the  necessity  of  such  a  decision, 
the  necessity  of  such  a  decision.  Such  Such  decision  shall  be  published  in  the 
decision  shall  be  published  in  the  Official  Official 
the  European 
Journal of the European Communities. 

Communities. 

Journal 

referred 

to 

of 

12 

Article  9 

l.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. 

l.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. 

2. Unchanged 

the  Commission 

3. At 
the 
Committee may examine any other question 
concerning  the  application  of  the  present 
Regulation. 

request, 

Article 9A 

The Commission shall present an evaluation 
report  on  the  operation  of  this  Regulation 
to  the Social  and Economic  Committee,  to 
the European Parliament and to the Council 
by 31  December  1999. 

13 

ISSN 0254-1475 

COM(96) 663  final 

DOCUMENTS 

EN 

07  06 

Catalogue number  :  CB-CO-96-675-EN-C 

ISBN 92-78-13353-1 

Office  for Official  Publications of the European Communities 

L-2985 Luxembourg 

/H