Opinion of the Economic and Social Committee on the "Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 2027/97 on air carrier liability in the event of accidents"
Date: 2001-01-24
Institutions: European Economic and Social Committee
Subjects: air transport, carriage of passengers, carrier, indemnification, transport accident

25.4.2001

EN

Official Journal of the European Communities

C 123/47

Opinion of the Economic and Social Committee on the ‘Proposal for a Regulation of the European
Parliament and of the Council amending Regulation (EC) No 2027/97 on air carrier liability in the
event of accidents’

(2001/C 123/09)

On 23 June 2000 the Council decided to consult the Economic and Social Committee, under Article 80(2)
of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for
preparing the Committee’s work on the subject, adopted its opinion on 9 January 2001. The rapporteur
was Mr Green.

At its 378th plenary session of 24 and 25 January 2001 (meeting of 24 January 2001) the Committee
adopted the following opinion by 79 votes, with one abstention.

1.

Background

Regulation (EC) No 2027/97 (1) introduced a modern
1.1.
liability regime for European Community airlines in the event
of death or injury of their passengers and guaranteed a uniform
regime for European Community airlines pending the ongoing
review of the 1929 Warsaw Convention with subsequent
amendments. In 1996 the Economic and Social Committee
adopted an opinion in support of the Commission’s proposal
for a regulation (2). However, that regulation did not cover a
number of matters, particularly those relating to baggage and
delays, which are now addressed in the current proposal
amending Regulation (EC) No 2027/97.

The Warsaw Convention (3) was a significant landmark
1.2.
in the history of international aviation; above all, it regulated
the relationship between air carriers and passengers in the
event of accidents occurring during international carriage by
air. Normally the burden of proof lies with the claimant but
the Warsaw Convention reversed this procedure. In order to
alleviate the impact of this innovation, air carrier liability was
limited unless the claimant could prove gross negligence.

1.3.
Since 1929 the Convention has been amended and
supplemented by a number of agreements, the most important
being the Hague Protocol (1955), the Guadalajara Convention

(1) OJ 1997 L 285, p. 1-3.
(2) OJ 1996, C 212, p. 38-40.
(3) For details of the Warsaw Convention with subsequent amend-
ments etc., see Article 55 of Annex A to the Proposal for a
Council Decision on the approval by the European Communities
the Convention for the Unification of Certain Rules for
of
International Carriage by Air
(the Montreal Convention)
COM(2000)446 final of 14.7.2000.

(1961), the Guatemala Protocol
(1971) and the Montreal
Protocols (1975). Though the Warsaw Convention has entered
into force in over 140 countries, not all the subsequent
agreements have taken effect, sometimes because there has
been an insufficient number of ratifications and, in other cases,
because the groups of signatory countries vary. However, in
the case of the Montreal Protocols, only Protocol No 3 has not
yet taken effect.

At present seven possible international
exist.

legislative regimes

1.3.1.
Air transport legislation is therefore complicated by
the fact that some countries have only signed the Warsaw
Convention (1929) while others have also acceded to one or
more of the later conventions, agreements or protocols. If
maximum air carrier liability under the Warsaw Convention is
indexed at 100, the Hague Protocol (1955) increases this limit
to 200, Guatemala (1971) to 1 200, and the Montreal Protocol
No 3 (1975) to 973 — the same ceiling as in the recent
Montreal Convention (1999), namely 100 000 SDR (4) per
passenger, with the proviso that air carriers may not refuse or
limit liability for damage arising in the specific circumstances
described in the Convention. The consumer price index for the
relevant period in the industrialised countries reached an index
of approx. 900 in the mid-70s.

1.3.2.
Expressed in euros, the air carrier liability limit under
the Warsaw Convention (1929) is approx. EUR 15 000; the
Montreal Convention (1999) provides for minimum liability
of just under EUR 150 000.

(4) The Special Drawing Right or SDR is an international currency
unit defined by the International Monetary Fund. 1 SDR = EUR
1,44 as of 26.4.2000.

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Official Journal of the European Communities

25.4.2001

Speedy ratification by the Member States of

1.4.
the
Montreal Convention of 28 May 1999 on the unification of
certain rules for international carriage by air (1), in conjunction
with the proposed amendment of Regulation (EC) No 2027/97,
will
facilitate the rapid entry into force of the Montreal
Convention (30 States must ratify) and in particular facilitate
the updating and harmonisation of the European Community
rules on air carrier liability for compensation in the event of a
passenger’s death or injury. The impact will in the short term
be to unify the rules concerning Community air carriers and
passengers on both domestic and intra-Community flights,
and ultimately, as a result of competition, to help achieve a
substantial improvement for passengers travelling between EU
and non-EU countries on airlines which are not established in
the Community.

1.4.1.
This approach is consistent with Treaty Article 307
and can assist Member States in taking a common position
where necessary. It is also in line with Article 55 of the
Montreal Convention (1999), which specifies that the Conven-
tion takes precedence over other provisions (Warsaw Conven-
tion, etc.).

1.5.
The Montreal Convention (1999) reflects the insurance
principle which has generally gained increasing ground in the
EU in transport matters, namely that the party with direct
responsibility for safety shall also bear direct economic
responsibility for any inadequacies in that respect.

level, however, a revision of the Community rules is needed in
order to make the following changes:

2.2.1.
Inclusion of a reference to the Montreal Convention
in addition to the existing reference to the Warsaw Convention
so that the new Convention becomes a point of reference and
the Regulation keeps pace with developments.

2.2.2.
Exact alignment of the provisions on liability, exoner-
ation and compensation in case of death or injury on the texts
of the equivalent provisions in the Montreal Convention so
that the regime applicable to Community carriers is the same,
regardless of whether the route flown is international, intra-
Community or domestic.

2.2.3.
Updating of the provision on advance compensatory
payments and the amount payable upon death of a passenger.

2.2.4.
Improvement and simplification of the provisions
on passenger information in order to focus on areas of real
interest to passengers.

2.2.5.
A particular innovation in the proposed amendment
to Regulation (EC) No 2027/97 is the introduction of a
uniform regime for all forms of liability towards passengers
and their belongings on all flights,
including liability for
baggage and for loss occasioned by delay, which is provided
for in the Montreal Convention but hitherto not in Regulation
(EC) No 2027/97.

2.

The Commission proposal

3. General comments

2.1.
The Montreal Convention establishes a modernised
and uniform legal framework to govern the liability of airlines
for damage to passengers, baggage and cargo incurred during
international journeys.

2.2.
The Montreal Convention and Regulation (EC)
No 2027/97 provide for the same basic system of liability for
death or injury of passengers. Adoption of the Montreal
Convention provisions inside the Community will therefore
not have adverse effects for European standards. At a detailed

(1) For details of the Warsaw Convention with subsequent amend-
ments etc., see Article 55 of Annex A to the Proposal for a
Council Decision on the approval by the European Communities
the Convention for the Unification of Certain Rules for
of
International Carriage by Air
(the Montreal Convention)
COM(2000)446 final of 14.7.2000.

Regulation (EC) No 2027/97 and the proposed amend-
3.1.
ment thereto differ in several respects from the Warsaw regime
in that the Regulation draws a distinction between EU air
carriers and carriers established outside the EU. On the other
hand, the Warsaw regime makes an operational distinction
between national and international carriage by air. As the
Community is not part of the Warsaw regime, Regulation (EC)
No 2027/97 and the proposed amendment thereto cannot
conflict with the Community’s international obligations.

In a case brought by IATA (2) before the High Court
3.1.1.
of Justice in England, although the judge found that the
Regulation created conflicts for Member States in relation to
their prior obligations to other Warsaw Treaty States, he
declined to refer the matter to the European Court of Justice.

(2) IATA has just under 240 general members, of which as many as

30 are established in the Community.

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3.1.2.
In addition, it is far from certain that any clash arises
between the Warsaw regime and the Regulation since none of
the countries which have undersigned the Warsaw provisions
have taken any action in this respect.

3.5.
Should that date be prior to the entry into force of the
Montreal Convention, some confusion could arise as to
the obligations of Community carriers. The ESC therefore
advocates that efforts be made to ensure simultaneity as far as
is feasible.

3.1.3.
Even if such a conflict could be established, that does
not as such render Regulation (EC) No 2027/97 invalid. Should
ratification of the Montreal Convention not be imminent, the
Member States could on the other hand be forced to renounce
their Warsaw Convention undertakings, but only where such
a conflict could be established following the demand of a
country which has ratified the Warsaw Convention.

4.

Specific comments

4.1. Article 2(c)

The ESC welcomes the proposed rewording of this text, which
provides greater clarity.

Except

3.1.4.
the High Court
in the United Kingdom,
decision therefore has no legal force in the other 14 Member
States. The decision can create de facto uncertainty only perhaps
in the United Kingdom. However, as far as EU air carriers and
citizens are concerned, there seems to be no grounds for non-
implementation of the Regulation, since its rules on liability
do not apply to air carriers which are not established in
the Community. Non-EU carriers are only bound by the
requirement
to inform passengers, which does not seem
incompatible with the Warsaw Convention.

4.2. Article 2(f)

The ESC takes the view that the relevant Montreal additional
protocols should be incorporated into the proposed amend-
in the case of their signatory
ment to Article 2(f) since,
countries, these instruments update the original and the revised
Warsaw Convention.

3.1.5.
endorses the Commission’s viewpoint.

In the light of the above considerations, the ESC

4.3. Article 3(2)

Implementation of the proposed amendment to Regu-
3.2.
lation (EC) No 2027/97 will give passengers a greater degree
of certainty about their rights and ensure that the Community
regime fits seamlessly with the new global rules provided for
in the Montreal Convention.

3.3.
The ESC calls for international pressure to be brought
to bear so that the Montreal Convention (1999) can take effect
speedily; to this end, the Member States should ratify the
Convention as soon as possible. However, it must be borne in
mind that the Warsaw Convention provisions will continue to
operate for a time in tandem with the Montreal Convention as
regards flights between the EU and third countries.

3.4.
The ESC agrees with the Commission that the revised
Regulation should enter into force on the earliest date compat-
ible with the Community legislative process and the necessary
adjustments by the industry.

Though the proposed clarification regarding air carriers’ obli-
gation of insurance pursuant to Article 7 of Regulation (EC)
No 2407/92 (1) is consistent with Article 50 of the Montreal
Convention (1999), the ESC recommends that this obligation
should be spelled out more clearly in the Community context,
on practical insurance grounds.

4.4. Article 5(3)

The ESC would point out that, as a consequence of the
proposed deletion of Article 3(3), the reference to this clause
in Article 5(3) of Regulation (EC) No 2027/97 should be
amended accordingly.

4.5. Article 6

In the ESC’s view, all air carriers in the Community must be
required to provide written notice in simple and easily
understood terms, specifying their legal obligations in respect
of liability.

(1) OJ 1992 L 240, p. 1-7.

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4.6. Article 7 (of Regulation (EC) No 2027/97)

In the ESC’s view, the deadline by which the Commission is to
draw up its report should be fixed so as to allow use of the
report’s conclusions by the deadlines indicated in Article 24 of
the Montreal Convention concerning the review of liability
limits.

However,

4.7.
in the ESC’s view, the liability ceiling of
1 000 SDR for loss, damage or delay of luggage is too low. It
would seem unrealistic for ordinary passengers to be expected
to make a special declaration of interest in delivery of their
baggage at destination.

Nonetheless, the ESC does understand that the proposed
amendment of Regulation (EC) No 2027/97, on this point
alone, duplicates the corresponding provision in the Montreal
Convention.

5. Conclusion

Subject to the above comments, the Economic and Social
Committee supports the Commission proposal for a Regu-
lation of the European Parliament and of the Council amending
Regulation (EC) No 2027/97 on air carrier liability in the event
of accidents (COM(2000) 340 final). It also urges the Member
States to ratify the 1999 Montreal Convention as speedily as
possible.

Brussels, 24 January 2001.

The President

of the Economic and Social Committee

Göke FRERICHS

Opinion of the Economic and Social Committee on the ‘Proposal for a Directive of the European
Parliament and of the Council on access to, and interconnection of, electronic communications
networks and associated facilities’

(2001/C 123/10)

On 25 October 2000 the Council decided to consult the Economic and Social Committee, under
Article 95 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for
preparing the Committee’s work on the subject, adopted its opinion on 7 December 2000. The rapporteur
was Mr Lagerholm.

At its 378th plenary session on 24 and 25 January 2001 (meeting of 24 January) the Economic and
Social Committee adopted the following opinion with 82 votes in favour and two abstentions.

1.

The Commission’s Proposal

1.1.
Against the background of the draft Directive on a
common regulatory framework for electronic communications
networks and services (1) the proposed Directive is intended to

harmonise the way in which access to, and interconnection of,
electronic communications networks and associated facilities
are regulated. The aim is to establish a regulatory framework
for relations between suppliers of networks and services so as
to ensure sustainable competition and interoperability of
services to the benefit of consumers.

(1) COM(2000) 393 final; ESC opinion CES 50/2001; see also ESC
opinion in OJ C 204, 18.7.2000 on ‘Towards a new framework for
electronic communications infrastructure and associated services.
The 1999 communications review’ (COM(1999) 539 final).

1.2.
The Directive provides legal certainty by establishing
clear criteria for regulatory intervention and clear limitations
on what obligations can be imposed, and in which circum-
stances, whilst at
the same time allowing for sufficient
flexibility.