Case C-529/08: Reference for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 2 December 2008 — Friedrich Schulze, Jochen Kolenda, Helmar Rendenz v Deutsche Lufthansa AG
Date: 2008-12-02
Institutions: Court of Justice
Subjects: air transport, airline, indemnification, interpretation of the law, transport company

C 44/32

EN

Official Journal of the European Union

21.2.2009

Reference for a preliminary ruling from the Bundes-
gerichtshof (Germany) lodged on 2 December 2008 —
Jochen Kolenda, Helmar Rendenz v
Friedrich Schulze,

Reference for a preliminary ruling from the Hoge Raad der
Nederlanden (Netherlands) lodged on 3 December 2008 —
TNT Express Nederland BV v AXA Versicherung AG

Deutsche Lufthansa AG

(Case C-529/08)

(2009/C 44/52)

Language of the case: German

(Case C-533/08)

(2009/C 44/53)

Language of the case: Dutch

Referring court

Bundesgerichtshof

Parties to the main proceedings

Claimants: Friedrich Schulze, Jochen Kolenda, Helmar Rendenz

Referring court

Hoge Raad der Nederlanden

Parties to the main proceedings

Appellant: TNT Express Nederland BV

Respondent: AXA Versicherung AG

Defendant: Deutsche Lufthansa AG

Questions referred

Questions referred

1. Can a technical defect which causes a cancellation be an
extraordinary
the meaning
circumstance within
of
Article 5(3) of Regulation (EC) No 261/2004 of
the
the Council of 11 February
European Parliament and of
2004 establishing common rules on compensation and assis-
tance to passengers in the event of denied boarding and of
cancellation or long delay of flights, and repealing Regulation
(EEC) No 295/91 (1)?

2. If so, does the concept of an extraordinary circumstance in
the form of a technical defect include also those faults which
affect the airworthiness of the aircraft or the safe completion
of the flight?

3. Has the operating air carrier taken all reasonable measures
where it has complied with the manufacturer's servicing and
maintenance programme for the aircraft in question and
with the safety standards and instructions of the competent
authority or manufacturer, or where the fault could not have
been avoided even if the carrier had complied with that
programme or those directions?

4. If the answer to question 3 is in the affirmative, is that suffi-
cient to release the air carrier from its obligation to pay
compensation, or is further evidence required that the cancel-
lation, that is to say, the fact of the relevant aircraft being
taken out of operation and the cancelling of the flight owing
to the lack of a replacement aircraft, would also not have
been avoided by the taking of all reasonable measures?

(1) OJ 2004 L 46, p. 1.

1. Must the second subparagraph of Article 71(2)(b) of Council
Regulation (EC) No 44/2001 (1) of 22 December 2000 on
jurisdiction and the recognition and enforcement of judg-
ments in civil and commercial matters be interpreted as
meaning: (i) that the rules on recognition and enforcement
laid down in Regulation No 44/2001 yield to those of a
special convention only if the rules of the special convention
claim exclusivity; or (ii) that, in the event of the simultaneous
applicability of the conditions for recognition and enforce-
ment laid down in the special convention and those laid
down in Regulation No 44/2001, the conditions laid down
in the special convention must always be applied and those
laid down in Regulation No 44/2001 are not to be applied,
even though the special convention makes no claim to exclu-
sive effect vis-à-vis other international rules on recognition
and enforcement?

2. Does the Court of Justice have jurisdiction, with a view to
forestalling divergent judgments in respect of the concur-
rence referred to in the first question, to interpret — in a
manner binding on the courts of the Member States — the
Convention on the Contract for the International Carriage of
Goods by Road, signed in Geneva on 19 May 1956 (the
CMR Convention),
in so far as the matters governed by
Article 31 of that convention are concerned?

3. If the answer to the second question is in the affirmative and
the answer to part (i) of the first question is likewise in the
affirmative, must the rules on recognition and enforcement
laid down in Article 31(3) and (4) of the CMR Convention
be interpreted as meaning that that convention does not
claim exclusivity and leaves room for the application of
other international enforcement rules making recognition or
enforcement possible, such as Regulation No 44/2001?

Should the Court of Justice answer part (ii) of the first ques-
tion in the affirmative and likewise answer the second ques-
tion in the affirmative,
the Hoge Raad also refers the
following three questions for the further appraisal of the
appeal in cassation: