Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union on the review of limits of liability conducted by the ICAO under Article 24 of the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention)
Date: 2024-09-11
Institutions: Directorate-General for Mobility and Transport, European Commission
Subjects: International Civil Aviation Organisation, air transport, international convention, international transport, liability, revision of an agreement

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   EUROPEAN COMMISSION  Brussels, 11.9.2024  COM(2024) 403 final 2024/0223 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union on the review of limits of liability conducted by the ICAO under Article 24 of the Convention for the Unification of Certain Rules for International Carriage by Air (the Montreal Convention)  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This  proposal  concerns  the  position  to  be  taken  on  the  Union’s  behalf  in  the  International 
Civil  Aviation  Organization  (ICAO)  in  respect  of  the  review  of  the  limits  of  liability 
conducted  by  the  ICAO  under  Article  24  of  the  Convention  for  the  Unification  of  Certain 
Rules for International Carriage by Air (the ‘Montreal Convention’). 

2. 

CONTEXT OF THE PROPOSAL 

2.1. 

The Montreal Convention 

The Montreal  Convention, agreed at  Montreal  on 28 May 1999, sets up rules  on liability in 
respect of the international carriage by air of persons, baggage and cargo. It replaced those set 
out in the Warsaw Convention of 1929 and its subsequent amendments. 
The European Union and all its Member States are parties to the Montreal Convention1. 

2.2. 

The International Civil Aviation Organization 

The  ICAO  is  a  specialised  agency  of  the  United  Nations.  The  aims  and  objectives  of  the 
Organization are to develop the principles and techniques of international air navigation and 
to foster the planning and development of international air transport. 

2.3. 

The  envisaged  review  of  the  liability  limits  under  Article  24  of  the  Montreal 
Convention 

The Montreal Convention establishes in its Articles 21 and 22 the liability limits of the air carrier 
for  damages  in  relation  to  the  carriage  of  passengers,  baggage  and  cargo.  The  amounts  so 
established are expressed in Special Drawing Rights (SDRs), a unit of account created by the 
International Monetary Fund (IMF). 

At the Diplomatic Conference which adopted the Montreal Convention, States were mindful 
of the need to ensure that the limits of liability retain their economic value with the passage of 
time and that they would not erode due to inflation or other economic factors subsequent to the 
coming into force of the Convention. 

To this end, the Montreal Convention provides in its Article 24 (Review of Limits) a built-in 
mechanism  for  a  periodic  review  and  revision  as  necessary  of  the  aforementioned  limits  of 
liability. The review mechanism was deliberately designed along the lines of a tacit approval 
process, ensuring general application while involving all States Parties. 

Article  24(1)  provides  that  the  limits  of  liability  be  reviewed  by  the  Depositary  (ICAO)  at 
five-year intervals. The  last  review  took  place  in  2019.  Pursuant  to  Article  24(1),  the  limits 
shall  be  reviewed  by  reference  to  an  inflation  factor  which  corresponds  to  the  accumulated 
rate of inflation since the previous revision. The measure of the rate of inflation to be used in 
determining  the  inflation  factor  is  the  weighted  average  of  the  annual  rates  of  increase  or 
decrease in the Consumer Price Indices of the States whose currencies comprise the SDR. 

As  detailed  in  the  ICAO  State  Letter  LE  3/38.1-IND/24/4  of  28  June  2024,  for  the  current 
review  it  is  necessary  to  consider  the  inflation  factor  since  2018.  As  a  result  of  the  review 
carried  out  by  the  ICAO,  the  inflation  factor  for  the  relevant  review  cycle  has  been 

1 

Council Decision 2001/539/EC of 5 April 2001 on the conclusion by the European Community of the 
Convention  for  the  Unification  of  Certain  Rules  for  International  Carriage  by  Air  (the  Montreal 
Convention) (OJ L 194, 18.7.2001, p. 38). 

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determined  to  exceed  10  per  cent,  which  is  the  threshold  stipulated  in  the  Convention  for 
triggering an adjustment of the limits of liability.  

The  determined  inflation  factor  is  17.9  per  cent.  As  a  consequence,  the  limits  of  liability 
would need to be adjusted as follows: 

Montreal Convention 
1999 

Original limit 
(SDRs) 

Revised limit (SDRs) 
as of 28 December 2019 

Rounded Revised limit 
(SDRs)* 

Article 21 

100 000 

128 821 

151 880 

Article 22, paragraph 1 

Article 22, paragraph 2 

Article 22, paragraph 3 

*For  ease  of  reference,  one 
SDR was valued on 12 June 
2024 at U.S. $ 1.32. 

4 150 

1 000 

17 

5 346 

1 288 

22 

6 303 

1 519 

26 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

In  line  with  the  tacit  approval  mechanism  spelled  out  in  Article  24(2)  of  the  Montreal 
Convention,  a  revision  of  the  limits  of  liability  notified  to  the  States  Parties  shall  become 
effective six months after this notification, unless within three months after this notification a 
majority of States Parties have registered their disapproval with the ICAO.  

In the absence of notifications of disapproval received from a majority of States Parties to the 
Montreal Convention by no later than 30 September 2024, the ICAO will notify all signatories 
and States Parties in accordance with Article 53(8)(d) of the Montreal Convention, regarding 
the date of the coming into force of the revised limits of liability. 

It is therefore necessary to adopt the Union’s position on the review of the liability limits as 
detailed in section 2.3. 

In view of the technical nature of the said review, which follows the clearly defined method of 
calculation laid down in the Montreal Convention, there is no reason for the Union to object 
to the review.  

This  position  is  well  in  line  with  the  Union’s  policy  on  consumer  protection  and  ensures  a 
high level of protection for air passengers. 

Therefore,  the  position  to  be  taken  on  the  Union’s  behalf  should  be  to  not  register  any 
disapproval  to  the  proposed  new  liability  limits  as  detailed  in  the  ICAO  State  Letter  LE 
3/38.1-IND/24/4 of 28 June 2024. 

The Union is a party to the Montreal Convention and the revision of the liability limits falls in 
an area of exclusive Union competence, in which the Member States can no longer act in their 
national capacity unless duly authorised to do so pursuant to Article 2(1) TFEU2. Therefore, it 
is in principle for the Union, represented by the Commission, to decide whether to register or 
not register disapproval in the context of Article 24(2) of the Montreal Convention.  

2 

Opinion 2/91, Convention Nº 170 of the International Labour Organization, EU:C:1993:106, paragraph 
26. 

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However,  Article  53(2)  of  the  Montreal  Convention,  last  sentence,  provides  that  “For  the 
purpose of Article 24, the references to "a majority of the States Parties" and "one-third of the 
States  Parties"  shall  not  apply  to  a  Regional  Economic  Integration  Organisation”.  It  is 
therefore  unclear  whether  a  disapproval  submitted  by  Regional  Economic  Integration 
Organisations like the Union would be counted for the coming into effect of the  revision of 
the  limits  of  liability  under  Article  24(2)  of  the  Montreal  Convention.  These  considerations 
are not immediately relevant for the present case, where the Union position is not to register 
disapproval in the context of the review, and therefore no submission to the Depositary of the 
Montreal Convention is to be made. However, in light of the rules of the Montreal Convention 
and  pending  a  clarification  thereof,  this  decision  is  addressed  also  to  the  Member  States, 
which are therefore required not to register disapproval of the review.  

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement’. 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’3. 

4.1.2.  Application to the present case 

The envisaged review of the liability limits has legal effects for the purposes of Article 218(9) 
TFEU. 

In accordance with Article 24(1) of the Montreal Convention, the Depositary (ICAO) reviews 
the limits of liability at five-year intervals. In line with the tacit approval mechanism spelled 
out in Article 24(2), the said revisions shall become effective for all States Parties six months 
following the notification of the limits of liability. The revised liability limits will be binding 
under international law in accordance with Articles 21 and 22(1), (2) and (3) of the Montreal 
Convention, unless within three months after the notification, a majority of States Parties have 
registered their disapproval with the ICAO. The envisaged review of the liability limits  will 
be  capable  of  decisively  influencing  the  content  of  EU  legislation.  Indeed,  the  Montreal 
Convention, which entered into force, so far as the Union is concerned, on 28 June 2004, has, 
as from that date, been an integral part of the Union legal order4. 

The review at hand does not supplement or amend the institutional framework of the Montreal 
Convention. 

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU. 

3 

4 

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  
Judgment  of  the  Court  of  Justice  of  19  December  2019,  Niki  Luftfahrt,  Case  C-532/18, 
ECLI:EU:C:2019:1127, paragraph 30, and the case-law cited. 

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4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the objective and content of the envisaged act in respect of which a position is taken on the 
Union's  behalf.  If the  envisaged act  pursues two  aims or has two components  and if one of 
those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

4.2.2.  Application to the present case 

The  main  objective  and  content  of  the  revision  of  the  reviewed  liability  limits  relate  to  the 
common transport policy. 

Therefore, the substantive legal basis of the proposed decision is Article 100(2) TFEU. 

4.3. 

Conclusion 

The  legal  basis  of  the  proposed  decision  Article  100(2)  TFEU,  in  conjunction  with  Article 
218(9) TFEU. 

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2024/0223 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union on the review of limits of 
liability conducted by the ICAO under Article 24 of the Convention for the Unification 
of Certain Rules for International Carriage by Air (the Montreal Convention) 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 100(2), in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

The Convention for the Unification of Certain Rules for International Carriage by Air 
(the ‘Montreal Convention’) agreed at Montreal on 28 May 1999 was approved by the 
Union by Council Decision 2001/539/EC of 5 April 20015.  

Pursuant to Article 24(1) of the Montreal Convention, the International Civil Aviation 
Organization  (ICAO),  as  the  Depositary  to  the  convention,  is  to  review  the  limits  of 
liability prescribed in Articles 21, 22 and 23 at five-year intervals. 

As  a  result  of  the  latest  review  carried  out  by  the  ICAO,  the  limits  of  liability 
prescribed in Articles 21 and 22(1), (2) and (3) of the Montreal Convention need to be 
adjusted, as detailed in the  ICAO State Letter LE 3/38.1-IND/24/4 of 28 June 2024. 
According to that letter, the said revisions are to become effective for all States Parties 
six  months  following  their  notification,  unless  within  three  months  after  this 
notification a majority of States Parties register their disapproval with the ICAO. 

It  is  appropriate  to  establish  the  position  to  be  taken  on  the  Union’s  behalf  in  the 
ICAO,  as  the  revised  limits  of  liability  will  be  binding  under  international  law,  in 
accordance with Articles 21 and 22(1), (2) and (3) of the Montreal Convention, and as 
the Montreal Convention forms an integral part of the Union legal order. 

In view of the technical  nature of the said  review, which follows the  clearly defined 
method of calculation laid down in the Montreal Convention, there is no reason for the 
Union to object to the review. 

Therefore, the position to be taken on the Union’s behalf should be to not register any 
disapproval  to  the  proposed  new  liability  limits  as  detailed  in  the  ICAO  State  Letter 
LE 3/38.1-IND/24/4 of 28 June 2024. 

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Council Decision 2001/539/EC of 5 April 2001 on the conclusion by the European Community of the 
Convention  for  the  Unification  of  Certain  Rules  for  International  Carriage  by  Air  (the  Montreal 
Convention) (OJ L 194, 18.7.2001, p. 38). 

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HAS ADOPTED THIS DECISION: 

Article 1 

The position to be taken on the Union's behalf in respect of the ICAO State Letter LE 3/38.1-
IND/24/4  of  28  June  2024  shall  be  to  not  register  any  disapproval  to  the  proposed  new 
liability limits detailed in that State Letter. 

This Decision is addressed to the Commission and to the Member States.  

Done at Brussels, 

Article 2 

For the Council 
The President 

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