Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002 amending Council Regulation (EC) No 2027/97 on air carrier liability in the event of accidents (Text with EEA relevance)
Date: 2002-05-13
Institutions: Council of the European Union, European Parliament
Subjects: airline, damages, indemnification, personal effects, transport accident, transport company, traveller

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Official Journal of the European Communities

30.5.2002

I

(Acts whose publication is obligatory)

REGULATION (EC) No 889/2002 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 13 May 2002

amending Council Regulation (EC) No 2027/97 on air carrier liability in the event of accidents

(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,

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

Having regard to the opinion of the Economic and Social
Committee (2),

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)

(2)

(3)

(4)

(5)

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

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).

The Warsaw Convention will continue to exist alongside
the Montreal Convention for an indefinite period.

The Montreal Convention provides for a regime of
unlimited liability in the case of death or injury of air
passengers.

The Community has signed the Montreal Convention
indicating its intention to become a party to the agree-
ment 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,
24.1.2002, p. 256) Council Common Position of 19 December
2001 (OJ C 58 E, 5.3.2002, p. 8) and Decision of the European
Parliament of 12 March 2002.

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

(6)

(7)

(8)

(9)

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 provi-
sions of the Montreal Convention, thereby creating a
uniform system of liability for international air trans-
port.

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 adop-
tion of this Regulation.

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.

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 for

loss of, damage to, or
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 airlines and enable passengers to recognise when
additional

insurance is necessary.

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

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(13)

(14)

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

(b) “Community air carrier” 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;

is desirable to relieve accident victims and their
It
dependants of short-term financial concerns in the
period immediately after an accident.

(c) “person entitled to compensation”

shall mean a
passenger or any person entitled to claim in respect of
that passenger,

in accordance with applicable law;

(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 Regula-
tion (EEC) No 2407/92 of 23 July 1992 on licensing of
air carriers (1) in complying with this provision.

(16)

(17)

(18)

It is desirable to provide basic information on the liabi-
lity rules applicable to every passenger so that they can
make additional insurance arrangements in advance of
travel

if necessary.

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

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

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

(e) “SDR” shall mean a special drawing right as defined by

the International Monetary Fund;

(f) “Warsaw Convention” 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 Conven-
tion supplementary to the Warsaw Convention done at
Guadalajara on 18 September 1961;

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

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

HAVE ADOPTED THIS REGULATION:

4. Article 3 shall be replaced by the following:

Article 1

‘Article 3

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

1. the title shall be replaced by the following:

‘Regulation (EC) No 2027/97 on air carrier liability in
respect of the carriage of passengers and their baggage by
air.’;

2. Article 1 shall be replaced by the following:

‘Article 1

This Regulation implements the relevant provisions of the
Montreal Convention in respect of the carriage of passen-
gers 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.’;

3. Article 2 shall be replaced by the following:

‘Article 2

1.

For the purpose of this Regulation:

(a) “air carrier” shall mean an air transport undertaking

with a valid operating licence;

The liability of a Community air carrier in respect of
1.
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 compensa-
tion receive the full amount to which they are entitled in
accordance with this Regulation.’;

5. the following Article shall be inserted:

‘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.’;

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

6. Article 4 shall be deleted;

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7. Article 5 shall be replaced by the following:

‘Article 5

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

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

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
of the Montreal Convention or where the person who
received the advance payment was not the person entitled
to compensation.’;

those established by this Regulation unless the Community
air carrier applies higher limits by way of voluntary under-
taking.
In the case of all carriage performed by non-
Community air carriers, paragraphs 1 and 2 shall apply
only in relation to carriage to,
from or within the
Community.’;

9. Article 7 shall be replaced by the following:

‘Article 7

than three years after

the date on which
No later
Regulation (EC) No 889/2002 (*) begins to apply,
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,

(*) OJ L 140, 30.5.2002, p. 2.’;

10. the following Annex shall be added:

8. Article 6 shall be replaced by the following:

‘ANNEX

‘Article 6

Air carrier liability for passengers and their baggage

1.
All air carriers shall, when selling carriage by air in
the Community, ensure that a summary of the main provi-
sions governing liability for passengers and their baggage,
including deadlines for 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
information requirement,
order
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.

to comply with this

2.
In addition to the information requirements set out
in paragraph 1, all air carriers shall in respect of carriage
by air provided or purchased in the Community, provide
each passenger with a written indication of:

— the applicable limit for that flight on the carrier's liabi-
lity in respect of death or injury, if such a limit exists,

— the applicable limit for that flight on the carrier's liabi-
lity in respect of destruction,
loss of or damage to
baggage and a warning that baggage greater in value
to the airline's
than this figure should be brought
attention at check-in or fully insured by the passenger
prior to travel;

— the applicable limit for that flight on the carrier's liabi-

lity 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

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

limits

liability

to the

are no financial

There
for
passenger injury or death. For damages up to 100 000
SDRs (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)

Advance payments

an

advance

If a passenger is killed or injured, the air carrier must
make
immediate
payment,
economic needs, within 15 days from the identification
of the person entitled to compensation. In the event of
death,
than
this advance payment
in local currency).
16 000 SDRs (approximate amount

shall not be less

cover

to

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
SDRs (approximate amount in local currency).

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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 baggage delay is limited to 1 000 SDRs
(approximate 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 SDRs (approximate amount in
local currency).
is
liable even if not at fault, unless the baggage was defec-
tive.
the carrier is
liable only if at fault.

In the case of unchecked baggage,

In the case of checked baggage,

it

Higher limits for baggage

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.

Complaints on 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
right
to address a complaint or to make a claim for
damages against either. If the name or code of an air
carrier is indicated on the ticket, that air carrier is the
contracting air carrier.

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 889/2002) and national
legislation of the Member States.’

Article 2

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

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 Brussels, 13 May 2002.

For the European Parliament

The President

P. COX

For the Council

The President

J. PIQUÉ I CAMPS