Common Position (EC) No 14/2002 of 19 December 2001 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting 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 (Text with EEA relevance)
Date: 2001-12-19
Institutions: Council of the European Union
Subjects: air transport, carrier, indemnification, transport accident, traveller

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COMMON POSITION (EC) No 14/2002

adopted by the Council on 19 December 2001

with a view to adopting Regulation (EC) No . . ./2002 of the European Parliament and of the
Council of . . . amending Regulation (EC) No 2027/97 on air carrier liability in the event of
accidents

(2002/C 58 E/02)

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 80(2) thereof,

(6) It

is necessary to amend Council Regulation (EC)
No 2027/97 of 9 October 1997 on air carrier liability
in the event of accidents (5) in order to align it with the
provisions of the Montreal Convention, thereby creating a
uniform system of liability for international air transport.

Having regard to the proposal from the Commission (1),

Having regard to the opinion of
Committee (2),

the Economic and Social

Following consultation of the Committee of the Regions,

Acting in accordance with the procedure laid down in Article
251 of the Treaty (3),

Whereas:

(1) In the framework of the common transport policy, it is
important to ensure a proper level of compensation for
passengers involved in air accidents.

(2) A new Convention for the Unification of Certain Rules
Relating to International Carriage by Air was agreed at
Montreal on 28 May 1999 setting new global rules on
liability in the event of accidents for international air
transport replacing those in the Warsaw Convention of
1929 and its subsequent amendments (4).

(3) The Warsaw Convention will continue to exist alongside

the Montreal Convention for an indefinite period.

(4) The Montreal Convention provides

for a regime of
unlimited liability in the case of death or injury of air
passengers.

(5) The Community has signed the Montreal Convention indi-
cating its intention to become a party to the Agreement
by ratifying it.

(1) OJ C 337 E, 28.11.2000, p. 68 and OJ C 213 E, 31.7.2001, p. 298.
(2) OJ C 123, 25.4.2001, p. 47.
(3) Opinion of the European Parliament of 5 April 2001 (OJ C 21 E,
24.1.2002, p. 317), Council Common Position of 19 December
2001 and Decision of the European Parliament of
(not yet
published in the Official Journal).

. . .

(7) This Regulation and the Montreal Convention reinforce
the protection of passengers and their dependants and
cannot be interpreted so as to weaken their protection
in relation to the present
legislation on the date of
adoption of this Regulation.

(8) In the internal aviation market, the distinction between
national and international transport has been eliminated
and it is therefore appropriate to have the same level and
nature of
liability in both international and national
transport within the Community.

(9) In compliance with the principle of subsidiarity, action at
Community level is desirable in order to create a single set
of rules for all Community air carriers.

(10) A system of unlimited liability in case of death or injury
to passengers is appropriate in the context of a safe and
modern air transport system.

(11) The Community air carrier should not be able to avail
itself of Article 21(2) of the Montreal Convention unless it
proves that the damage was not due to the negligence or
other wrongful act or omission of
the carrier or its
servants or agents.

(12) Uniform liability limits

loss of, damage to, or
for
destruction of, baggage and for damage occasioned by
delay, which apply to all travel on Community carriers,
will ensure simple and clear rules for both passengers and
to recognise when
and enable passengers
airlines
additional insurance is necessary.

(13) It would be impractical for Community air carriers and
they were to apply
confusing for their passengers if
different liability regimes on different routes across their
networks.

(4) OJ L 194, 18.7.2001, p. 38.

(5) OJ L 285, 17.10.1997, p. 1.

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(14) It

is desirable to relieve accident victims and their
in the

short-term financial concerns

dependants of
period immediately after an accident.

(15) Article 50 of the Montreal Convention requires parties to
ensure that air carriers are adequately insured and it is
necessary to take account of Article 7 of Council Regu-
lation (EEC) No 2407/92 of 23 July 1992 on licensing of
air carriers (1) in complying with this provision.

(16) It is desirable to provide basic information on the liability
rules applicable to every passenger so that they can make
additional insurance arrangements in advance of travel if
necessary.

(17) It will be necessary to review the monetary amounts set
down in this Regulation in order to take account of
the liability limits in the
inflation and any review of
Montreal Convention.

(18) To the extent that further rules are required in order to
implement the Montreal Convention on points that are
it is the
not covered by Regulation (EC) No 2027/97,
responsibility of
to make such
provisions,

the Member States

HAVE ADOPTED THIS REGULATION:

Article 1

(b) (cid:147)Community air carrier(cid:148) shall mean an air carrier with
a valid operating licence granted by a Member State in
accordance with the provisions of Regulation (EEC)
No 2407/92;

(c) (cid:147)person entitled to compensation(cid:148)

shall mean a
passenger or any person entitled to claim in respect
of that passenger, in accordance with applicable law;

(d) (cid:147)baggage(cid:148), unless otherwise specified, shall mean both
checked and unchecked baggage with the meaning of
Article 17(4) of the Montreal Convention;

(e) (cid:147)SDR(cid:148) shall mean a special drawing right as defined by

the International Monetary Fund;

(f)

(cid:147)Warsaw Convention(cid:148) shall mean the Convention for
the Unification of Certain Rules Relating to Inter-
national Carriage by Air,
signed at Warsaw on
12 October 1929, or
the Warsaw Convention as
amended at the Hague on 28 September 1955 and
the Warsaw
supplementary
the Convention
Convention done at Guadalajara on 18 September
1961;

to

Regulation (EC) No 2027/97 is hereby amended as follows:

1. the title shall be replaced by the following:

(g) (cid:147)Montreal Convention(cid:148) shall mean the Convention for
the Unification of Certain Rules Relating to Inter-
national Carriage by Air,
signed at Montreal on
28 May 1999.

(cid:145)Regulation (EC) No 2027/97 on air carrier liability in
respect of the carriage of passengers and their baggage
by air(cid:146);

2. Article 1 shall be replaced by the following:

(cid:145)Article 1

This Regulation implements the relevant provisions of the
Montreal Convention in respect of
carriage of
passengers and their baggage by air and lays down
certain supplementary provisions.
the
application of these provisions to carriage by air within
a single Member State.(cid:146);

It also extends

the

3. Article 2 shall be replaced by the following:

(cid:145)Article 2

1.

For the purpose of this Regulation:

(a) (cid:147)air carrier(cid:148) shall mean an air transport undertaking

with a valid operating licence;

(1) OJ L 240, 24.8.1992, p. 1.

2.
Concepts contained in this Regulation which are not
defined in paragraph 1 shall be equivalent to those used in
the Montreal Convention.(cid:146);

4. Article 3 shall be replaced by the following:

(cid:145)Article 3

1.
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.

2.
The obligation of insurance set out in Article 7 of
Regulation (EEC) No 2407/92 as far as it relates to liability
for passengers shall be understood as requiring that a
Community air carrier shall be insured up to a level that
is adequate to ensure that all persons entitled to compen-
sation receive the full amount to which they are entitled in
accordance with this Regulation.(cid:146);

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5. The following Article 3a shall be inserted:

by air provided or purchased in the Community, provide
each passenger with a written indication of:

(cid:145)Article 3a

The supplementary sum which, in accordance with Article
22(2) of the Montreal Convention, may be demanded by a
Community air carrier when a passenger makes a special
declaration of interest in delivery of their baggage at desti-
nation, shall be based on a tariff which is related to the
additional costs involved in transporting and insuring the
baggage concerned over and above those for baggage
valued at or below the liability limit. The tariff shall be
made available to passengers on request.(cid:146);

6. Article 4 shall be deleted.

7. Article 5 shall be replaced by the following:

(cid:145)Article 5

1.
The Community air carrier shall without delay, and
in any event not later than 15 days after the identity of the
natural person entitled to compensation has been estab-
lished, make such advance payments as may be required
basis
economic
to meet
proportional to the hardship suffered.

immediate

needs

on

a

(cid:151) the applicable limit

flight on the carrier’s
liability in respect of death or injury, if such a limit
exists,

for that

(cid:151) the applicable limit

for that

flight on the carrier’s
loss of or damage
liability in respect of destruction,
to baggage and a warning that baggage greater in
value than this
to the
airline’s attention at check-in or fully insured by the
passenger prior to travel,

figure should be brought

(cid:151) the applicable limit

for that

flight on the carrier’s

liability for damage occasioned by delay.

3.
In the case of all carriage performed by Community
air carriers, the limits indicated in accordance with the
information requirements of paragraphs 1 and 2 shall be
those established by this Regulation unless the Community
air carrier applies higher limits by way of voluntary under-
taking.
carriage performed by
all
non-Community air carriers, paragraphs 1 and 2 shall
apply only in relation to carriage to, from or within the
Community.(cid:146)

case of

In the

2. Without prejudice to paragraph 1, an advance
payment shall not be less than the equivalent in euro of
16 000 SDR per passenger in the event of death.

(cid:145)Article 7

9. Article 7 shall be replaced by the following:

3.
An advance payment shall not constitute recognition
of liability and may be offset against any subsequent sums
paid on the basis of Community air carrier liability, but is
not returnable, except in the cases prescribed in Article 20
the Montreal Convention or where the person who
of
received the advance payment was not
the person
entitled to compensation.(cid:146);

begins

No later than three years after the date on which Regu-
lation (EC) No . . ./2002 (*)
the
Commission shall draw up a report on the application of
this Regulation.
the Commission shall
examine the need to revise the amounts mentioned in
the relevant Articles of the Montreal Convention in the
light of economic developments and the notifications of
the ICAO depositary.

In particular,

to apply,

8. Article 6 shall be replaced by the following:

___________
(*) OJ L . . .(cid:146)

(cid:145)Article 6

10. The following Annex shall be added:

for

including deadlines

All air carriers shall, when selling carriage by air in
1.
the main
the Community, ensure that a summary of
provisions governing liability for passengers and their
baggage,
filing an action for
compensation and the possibility of making a special
declaration for baggage,
is made available to passengers
at all points of sale, including sale by telephone and via
the Internet.
In order to comply with this information
requirement, Community air carriers shall use the notice
contained in the Annex. Such summary or notice cannot
be used as a basis for a claim for compensation, nor to
interpret the provisions of this Regulation or the Montreal
Convention.

2.
In addition to the information requirements set out
in paragraph 1, all air carriers shall in respect of carriage

(cid:145)ANNEX

Air carrier liability for passengers and their baggage

This information notice summarises the liability rules
applied by Community air
required by
Community legislation and the Montreal Convention.

carriers

as

Compensation in the case of death or injury

There are no financial limits to the liability for passenger
injury or death. For damages up to 100 000 SDR
(approximate amount
the air carrier
cannot contest claims
for compensation. Above that
amount, the air carrier can defend itself against a claim
by proving that it was not negligent or otherwise at fault.

in local currency)

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Advance payments

Complaints on baggage

If a passenger is killed or injured, the air carrier must make
an advance payment, to cover immediate economic needs,
within 15 days from the identification of
the person
this
entitled to compensation.
advance payment shall not be less than 16 000 SDR
(approximate amount in local currency).

In the event of death,

Passenger delays

In case of passenger delay, the air carrier is liable for
damage unless it took all reasonable measures to avoid
the damage or it was impossible to take such measures.
The liability for passenger delay is limited to 4 150 SDR
(approximate amount in local currency).

Baggage delays

In case of baggage delay, the air carrier is liable for damage
unless it took all reasonable measures to avoid the damage
or it was impossible to take such measures. The liability for
limited to 1 000 SDR (approximate
baggage delay is
amount in local currency).

Destruction, loss or damage to baggage

The air carrier is liable for destruction, loss or damage to
baggage up to 1 000 SDR (approximate amount in local
currency). In the case of checked baggage, it is liable even
if not at fault, unless the baggage was defective. In the case
of unchecked baggage, the carrier is liable only if at fault.

Higher limits for baggage

If the baggage is damaged, delayed, lost or destroyed, the
passenger must write and complain to the air carrier as
soon as possible.
In the case of damage to checked
baggage, the passenger must write and complain within
seven days, and in the case of delay within 21 days, in
both cases from the date on which the baggage was placed
at the passenger’s disposal.

Liability of contracting and actual carriers

If the air carrier actually performing the flight is not the
same as the contracting air carrier, the passenger has the
to address a complaint or to make a claim for
right
damages against either.
the name or code of an air
carrier is indicated on the ticket, that air carrier is the
contracting air carrier.

If

Time limit for action

Any action in court to claim damages must be brought
within two years from the date of arrival of the aircraft, or
from the date on which the aircraft ought to have arrived.

Basis for the information

The basis for the rules described above is the Montreal
Convention of 28 May 1999, which is implemented in
the Community by Regulation (EC) No 2027/97 (as
amended by Regulation (EC) No . . ./2002) and national
legislation of the Member States.(cid:146)

Article 2

This Regulation shall enter into force on the day of its publi-
cation in the Official Journal of the European Communities.

A passenger can benefit from a higher liability limit by
making a special declaration at the latest at check-in and
by paying a supplementary fee.

It shall apply from the date of its entry into force or from the
date of the entry into force of the Montreal Convention for the
Community, whichever is the later.

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

Done at . . .

For the European Parliament
The President

For the Council
The President

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STATEMENT OF THE COUNCIL’S REASONS

I.

INTRODUCTION

its proposal for a regulation of the
The Commission submitted to the Council, on 7 June 2000,
European Parliament and of
the Council amending Regulation (EC) No 2027/97 on air carrier
liability in the event of accidents (1). This proposal, which is based upon Article 80(2) of the Treaty,
is subject to the codecision procedure in conformity with Article 251 of the Treaty.

The Economic and Social Committee issued its opinion on 24 January 2001 (2) and the Committee of
the Regions was consulted but decided not to issue an opinion.

The European Parliament delivered its opinion in first reading on 5 April 2001 (3). Subsequently, the
Commission presented an amended proposal on 22 May 2001 (4).

On 19 December 2001, the Council adopted its Common Position in accordance with Article 251(2) of
the Treaty.

II. OBJECTIVES

The main objective of the Regulation under consideration is to align existing Council Regulation (EC)
No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents (5) with the provisions
of the Convention for the Unification of Certain Rules Relating to International Carriage by Air, which
was agreed at Montreal on 28 May 1999 ((cid:145)the Montreal Convention(cid:146)).

Subsidiary objectives of the Regulation are to lay down certain supplementary provisions in respect of
the carriage of passengers and their baggage by air, and to extend the application of the Community
provisions to carriage by air within a single Member State.

It may be recalled that Regulation (EC) No 2027/97 was a first attempt to review, at Community level,
the system of air carrier liability set in place at international level by the Warsaw Convention of 1929.
In the course of the years, this system was found to be outdated. It had therefore been complemented
and overtaken by measures of various kinds, such as unilateral measures of certain Community Member
States and measures taken by the International Air Transport Association (IATA). Following these
initiatives, an International Air Law Conference was convened by ICAO in Montreal in May 1999 in
order to review the Warsaw Convention. The European Community took part in this Conference and
was allowed, as a regional economic integration organisation,
the signatories and
subsequently one of the Contracting Parties to the Montreal Convention, which was the result of
this Conference. The Montreal Convention can be described as a great success for the Community
and its Member States, since the rules laid down in this Convention are largely inspired on those set
forth in Regulation (EC) No 2027/97.

to be one of

III. THE COUNCIL’S MOTIVATION

During its proceedings the Council kept constantly in mind the wish to reinforce as much as possible
the rights of passengers. In its Common Position the Council followed the lines of the Commission
proposal, taking into account the opinion of the Economic and Social Committee and, in particular, the
amendments requested by the European Parliament at first reading. Specific points that were raised by
the Council concern the following.

(a) The Council agreed to add a new recital 7, in order to underline that Regulation (EC) No 2027/97,
as amended by the Regulation under consideration, reinforce (cid:151) in line with the Montreal
Convention (cid:151) the protection of passengers and their dependants. Therefore, it cannot be inter-
preted so as to weaken their protection in relation to the present legislation, that is the legislation
as it stands before the entry into force of the Regulation under consideration amending Regulation
(EC) No 2027/97.

(1) OJ C 337 E, 28.11.2000, p. 68.
(2) OJ C 123, 25.4.2001, p. 47.
(3) OJ C 21 E, 24.1.2002, p. 317.
(4) OJ C 213 E, 31.7.2001, p. 298.
(5) OJ L 285, 17.10.1997, p. 1.

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(b) With the aim of reinforcing passengers’ rights, the Council agreed to add a new recital 11, providing
that a Community air carrier should not be able to avail itself of Article 21(2) of the Montreal
Convention (cid:151) regarding compensation for damages in case of death or injury of passengers
exceeding 100 000 special drawing rights, (cid:151) unless it proves that the damage was not due to
the negligence or other wrongful act or omission of the carrier or its servants or agents.

(c) The Council welcomed the suggestion of the European Parliament concerning the notice contained
in the Annex to the Regulation, because it simplifies and clarifies the information regarding air
carrier liability that must be provided by Community air carriers to their passengers. As a conse-
quence of this notice, the first paragraph of Article 6 of Regulation (EC) No 2027/97 was no longer
needed.

(d) With respect to Article 2, first paragraph, the Council agreed to adapt the text in the light of the
practice according to which a Regulation enters into force on the day of its publication in the
Official Journal of the European Communities. With respect to the date from which the Regulation
should apply, the Council decided to provide that the Regulation should apply from the date of its
entry into force or from the date of the entry into force of the Montreal Convention for the
Community, whichever is the later. This is intended to ensure the necessary parallelism between
the Regulation and the Montreal Convention.

(e) The Council, followed by the Commission, observed that damages caused in the context of air
carriage might possibly result in liability both under the Montreal Convention or Regulation (EC)
No 2027/97 and the Package tour Directive (1). Therefore, both institutions entered a joint
statement to the Common Position, stating that in order to provide a consistent liability regime
they will consider the need for clarification of this issue in advance of the entry into force of the
Montreal Convention and Regulation (EC) No 2027/97 as amended, if necessary through a revision
of the Package tour Directive.

(f) The Council and the Commission further recognised that Regulation (EC) No 2027/97 does not
cover all carriers that are liable under the Montreal Convention and whose principal place of
business is within the Community. Therefore, in the same joint statement as indicated under the
preceding point, the Council and the Commission stated that with respect to these carriers it is
desirable that Member States take appropriate measures, by implementing the Montreal Convention
to provide for an equally high standard of passenger protection, in particular standards of liability.

IV. THE EUROPEAN PARLIAMENT’S AMENDMENTS

The Council followed, in full or in substance, all amendments by the European Parliament, very often in
the form suggested by the latter. Amendments 1 to 17 were accepted in their entirety or subject to
slight refinement in order to enhance legal or linguistic clarity.

Amendment 18 relating to Article 1(9a) (new point, Annex with notice regarding liability-information)
was accepted in substance. However, in order to enhance the clarity of the text and to tailor it closer to
the provisions of the Montreal Convention, several modifications were operated. In particular, a new
paragraph regarding (cid:145)baggage delays(cid:146) was inserted, several headings were added or modified, and the
text of certain paragraphs was changed. The paragraph regarding private insurance was deleted, since
the Council felt that this could lead to misunderstanding regarding the extent of the (unlimited) liability
of Community air carriers in respect of the carriage of passengers and their baggage by air.

(1) Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ L 158,

23.6.1990, p. 59).