CELEX: 51996PC0663
Language: en
Date: 1996-12-10
Title: Amended proposal for a COUNCIL REGULATION (EC) ON AIR CARRIER LIABILITY IN CASE OF ACCIDENTS

COMMISSION OF THE EUROPEAN COMMUNITIES
*  Tir
it  *
                                             Brussels, 10.12.1996
                                             COM(96) 663 final
                                            95/0359 (SYN)
                          Amended proposal for a
                     COUNCIL REGULATION (EC)
       ON AIR CARRIER LIABILITY IN CASE OF ACCIDENTS
        (presented by the Commission pursuant to Article 189 a (2)
                            of the EC-Treaty)
 ---pagebreak---  ---pagebreak---                                         Explanatory memorandum
During the plenary session on 17 September 1996 the European parliament approved the
proposal for a Council Regulation presented by the Commission on air carrier liability in case
of accidents1. It also adopted a certain number of amendments to the text put forward.
The Commission accepted the amendments 1 and 2 introducing new recitals since they
express in a cautious wording the need for the revision of the Warsaw Convention at
multilateral level and the role, nevertheless, that a Community action could play in such
negotiations, serving as a spur for a global solution.
It also accepted the amendment concerning recital 9 since it increases the level of strict
liability from ECU 100,000 to ECU 120,000.
It accepted the amendment related to recital 13 since it reaffirms with stronger wording than
the original Commission's proposal, the necessity to revise the cargo and luggage liability
systems.
It accepted the amendments related to recital 14 and article 8 since it introduces a more
precise wording, replacing "values" by "financial amounts".
 The Commission accepted the amendment related to recital 10 since it clarifies the need for
 advance payments.
 Likewise it adopts the amendment related to article 7 since it clarifies the nature of the action
 to be brought before a court, it also defines the domicile at the moment the accident
 occurred.
 The Commission also partially accepted the amendments concerning:
          Recital 12 and article 6 in so far as a commitment to apply the Regulation will be
          introduced in negotiations with third countries.
          Article 2.1) c) and d) as far as the removal of the lump sum and the new definition
          of persons entitled to compensation are concerned.
       i
          COM(95) 724 final of 20.12.1995
 ---pagebreak---      Article 4 since it introduces more flexibility for the advance payment.
     Article 5.2) since it reinforces the right of information of air transport users.
The Commission can accept in principle, subject to some redrafting the following
amendments concerning:
     Recital 8 and article 3.1) in so far as they make clear that only the monetary liability
     limits are concerned by this Regulation.
     Article 1 which clarifies the scope of the Regulation.
      Article 3.2) since it increases the level of strict liability from 100,000 Ecu to
      120,000.
      A new art.7A which considers the possibility of récourse for carriers
      A new article 9A since it requests an evaluation report by 1999.
 ---pagebreak---                           AMENDED PROPOSAL FOR A
                             COUNCIL REGULATION
            ON AIR CARRIER LIABILITY IN CASE OF ACCIDENTS
                                             Whereas a full review and revision of the
                                             Warsaw Convention is long overdue and
                                             would represent, in the long term, a more
                                             uniform and applicable response, on an
                                             international level, to the issue of airline
                                             liability in case of accidents: whereas
                                             efforts to increase the limits of liability
                                             imposed by the Warsaw Convention should
                                             continue through negotiation at multilateral
                                             level:
                                             Whereas Community action is nevertheless
                                             still desirable, to improve the level of
                                             compensation available to passengers and
                                             could serve as a guideline for improved
                                             passenger protection on a global scale:
Whereas the rules on liability in case of Unchanged
accidents are governed by the Convention
for the Unification of Certain Rules
Relating to International Carriage by Air
signed at Warsaw, 12 October 1929,
hereafter called the Convention, or that
Convention as amended at The Hague on
28 September 1955, whichever may be
applicable; whereas the Warsaw
Convention is applied worldwide for the
benefit of both passengers and air carriers,
and must be preserved;
 ---pagebreak--- Whereas the rules on the nature and Unchanged
limitation of liability in the event of death,
wounding or any other bodily injury
suffered by a passenger form part of the
terms and conditions of carriage in the air
transport contract between carrier and
passenger; whereas Council Regulations
(EEC) NT 2407/922, 2408/923, as amended
by the Act of Accession of Austria,
Finland and Sweden, and 2409/924 have
created an internal aviation market wherein
it is appropriate that the rules on the nature
and limitation of         liability should be
harmonized;
Whereas the limit set on liability by the Unchanged
Warsaw Convention is too low by today's
 economic and social standards; whereas in
 consequence Member States have variously
 increased the liability limit, thereby leading
 to different terms and conditions of carriage
 in the Community;
 Whereas in addition the Warsaw Unchanged
 Convention only applies to international
 transport; whereas in the internal aviation
 market the distinction between national and
 international transport has been eliminated;
 whereas it is therefore appropriate to have
 the same level and nature of liability in
 both national and international transport;
  Whereas the present low limit of liability    Unchanged
  often leads to lengthy legal actions which
  damage the image of air transport;
      2
         OJ N* L 240, 28.8.1992, pi
      3
         OJ N' L 240, 28.8.1992, p 8
      4
         OJ N * L 240, 28.8.1992, p 25
 ---pagebreak--- Whereas Community action in the field of       Unchanged
air transport should also aim at a high level
of protection for the interests of the users;
Whereas in order to provide harmonized         Unchanged
conditions of carriage in respect of liability
of air carrier and, further, in order to
ensure a high level of effective protection
of air users, action, regard being had to
the principle of subsidiarity, can best be
addressed at Community level;
Whereas it is appropriate to remove all        Whereas it is appropriate to remove all
limits of liability in the event of death,     monetary limits of liability in the sense of
wounding or any other bodily injury            article 22(1) of the Warsaw Convention or
suffered by a passenger;                       any other legal or contractual limits in the
                                               event of death, wounding or any other
                                               bodily injury suffered by a passenger;
Whereas in order to avoid situations where     Whereas in order to avoid situations where
victims of unpreventable accidents remain      victims of unpreventable accidents remain
uncovered, carriers should not, with respect   uncovered, carriers should not, with respect
to any claim arising out of the death,         to any claim arising out of the death,
wounding or other bodily injury of a           wounding or other bodily injury of a
passenger under article 17 of the Warsaw       passenger under article 17 of the Warsaw
Convention, avail themselves of any            Convention, avail themselves of any
defense under article (20) §1 thereof up to    defense under article (20) §1 thereof up to
the sum of ECU 100,000;                        the sum of ECU 120.000: whereas under
                                               article 21 of the Warsaw Convention, a
                                               court can wholly or partly exonerate a
                                               carrier from his liability if the carrier
                                               proves the contributory negligence of the
                                               victim.
Whereas passengers or next-of-kin should Whereas prompt advance payments can
receive a lump sum as soon as possible in considerably assist the injured passengers
order to face immediate needs;                 or next-of-kin in meeting the immediate
                                               costs following an air accident;
 ---pagebreak--- Whereas persons entitled to compensation       Whereas persons entitled to compensation
should have the benefit of legal clarity in    should have the benefit of legal clarity in
the event of an accident, whereas they         the event of an accident, whereas they
should be fully informed beforehand of the     should be fully informed beforehand of the
applicable rules; whereas it is necessary to   applicable rules; whereas it is necessary to
avoid lengthy litigation or claims process;    avoid lengthy litigation or claims process;
whereas it is appropriate in addition to give  whereas it is appropriate in addition to give
the person entitled to compensation the        the person entitled to compensation the
option of taking action in the courts of the   option of taking action in the courts of the
Member State in which the passenger has        Member State in which the passenger had
his domicile or permanent residence;           his domicile at the time of the accident:
Whereas it is desirable in order to avoid      Unchanged
distortion of competition that third-country
carriers adequately inform passengers of
their conditions of carriage;
                                               Whereas it is desirable in order to ensure
                                               as a broad protection as possible for the
                                               passengers, that the Community shall seek
                                               to incorporate in civil aviation agreements
                                               with third countries provisions similar to
                                               those outlined in this Regulation;
Whereas the improvement of the situation Whereas, for consistency and coherence.
for luggage and cargo is currently taken Community action aiming at the
care of at International Civil Aviation improvement and harmonisation of the
 Organization (ICAO) level and does not liability of carriers for lost or damaged
 require the same urgent treatment as the luggage and cargo will also need to be
passengers' situation;                         addressed;
 Whereas it is appropriate and necessary that  Whereas it is appropriate and necessary that
 the values expressed in this Regulation be    the financial amounts expressed in this
 increased in accordance with economic         Regulation be increased in accordance with
 developments; whereas it is appropriate to    economic developments; whereas it is
 empower the Commission,                 after appropriate to empower the Commission,
 consultation of an advisory committee, to     after consultation of an advisory committee,
 decide upon such increases,                   to decide upon such increases,
 ---pagebreak---                                            Article 1
This Regulation defines the obligations of This Regulation defines the obligations of
Community air carriers to cover liability in Community air carriers to cover liability
the event of accidents to passengers.            for damage sustained in the event of death
                                                 or wounding of a passenger or any other
                                                 bodily injury suffered by a passenger, if the
                                                 accident which caused the damage so
                                                 sustained took place on board the aircraft
                                                 or in the course of any of the operations of
                                                 embarking or disembarking.
                                           Article 2
 1. For the purpose of this Regulation:          1. For the purpose of this Regulation:
a) "air carrier" means an air transport          Unchanged
undertaking with a valid operating license;
b) "Community air carrier" means an air          Unchanged
transport undertaking in the sense of
Council Regulation (EEC) N° 2407/92;
 c) "persons entitled to compensation"           c) "persons entitled to compensation"
 means the victims and/or persons who, in        means a passenger and, in the event of the
 the light of the applicable law, are entitled   death of the passenger, any natural person
 to represent the victims in accordance with     entitled to claim in respect of that death in
 a legal provision, a court decision or in       accordance with applicable law:
 accordance with a special contract;
 d)"lump sum" means an advance payment           Delete
 to the person entitled to compensation to
 enable him to meet his most urgent needs,
 without prejudice to the speediest settlement
 of full compensation;
 e) "ECU"      means the unit of account Unchanged
 adopted in   drawing up the general budget
 of the       European Communities in
 accordance   with articles 207 and 209 of the
 Treaty.
 ---pagebreak--- f) "Warsaw Convention" means the               • f) "Warsaw Convention" means the
Convention for the Unification of certain        Convention for the Unification of certain
Rules relating to International Carriage by      Rules relating to International Carriage by
Air, signed in Warsaw on 12 October              Air, signed in Warsaw on 12 October
1929, together with all international            1929 : or the Warsaw Convention as
instruments which build on and are               amended at the Hague on 28 September
associated with it;                              1955: and the Convention Supplementary
                                                 to the Warsaw Convention             done at
                                                 Guadalajara on 18 September 1961 -
                                                 whichever is applicable to the passenger's
                                                 contract of carriage;
2. Concepts contained in this Regulation Unchanged
which are not defined in paragraph 1 shall
be equivalent to those used in the Warsaw
Convention.
                                           Article 3
 1. The liability of a Community air carrier 1. The amount of the pecuniary
for damages sustained in the event of the compensation that a Community air carrier
death, wounding or any other bodily injury has to sustain in the event of the death,
suffered by a passenger shall not be subject wounding or any other bodily injury
to any statutory or contractual limits.          suffered by a passenger in case of accident
                                                 shall not be subject to any legal,
                                                 conventional or contractual limits.
2. For any damages up to the sum of ECU          2. For any damages up to the sum of ECU
 100.000 the Community air carrier shall          120.000 the Community air carrier shall
 not exclude or limit his liability by proving   not exclude or limit his liability by proving
 that he and his agents have taken all           that he and his agents have taken all
 necessary measures to avoid the damage or       necessary measures to avoid the damage or
 that it was impossible for him or them to       that it was impossible for him or them to
 take such measures.                             take such measures.
                                                  3. If the carrier proves that the damage was
                                                 caused bv or contributed to by the
                                                  negligence of the injured person the court
                                                  may, in accordance with the provisions of
                                                  its own law, exonerate the carrier wholly
                                                  or partly from his liability.
 ---pagebreak---                                         Arrtrit 4
1. The carrier shall without delay, and in 1. The carrier shall without delay, and in
any event not later than ten days after the any event not later than ten days after the
event during which the damage occurred, identity of the person entitled to
pay to or make available to the person compensation has been established make
entitled to compensation a lump sum of up such advance payments as may be required
to ECU 50,000 in proportion to the injury to meet immediate economic needs.
sustained and in any event a sum of ECU
50,000 in case of death.
2. The lump sum may be offset against any 2. The payments under paragraph 1 shall
subsequent sum to be paid in respect of the not constitute recognition of liability and
liability of the Community air carrier, but may be offset against any subsequent sums
is not returnable under any circumstances. paid on the basis of the Community air
                                               carrier liability, but are not returnable
                                               under any circumstances.
                                         Article 5
 1. The requirements contained in articles 3   Unchanged
and 4 shall be included in the Community
air carrier's conditions of carriage
2. Adequate information on the provisions 2. Adequate information on the provisions
contained in articles 3 and 4 shall on contained in articles 3 and 4 shall on
request be given to passengers at the request be given to passengers at the
Community carrier's agencies, travel Community carrier's agencies, travel
agencies and check-in counters, and a agencies and check-in counters, and a
 summary of these requirements shall be summary of these requirements, in plain
made on the ticket document.                   and intelligible language, shall be printed
                                               on the ticket document.
                                             10
 ---pagebreak--- 3. Air carriers established outside the           3*.î Air carriers established outside the
Community and not subject to the                  Community, operating to. from and within
obligations referred to in articles 3 and 4       the Community and not subject to the
shall expressly and clearly inform the            obligations referred to in articles 3 and 4
passengers thereof, at the time of purchase       shall expressly and clearly inform the
of the ticket at the carrier's agencies, travel   passengers thereof, at the time of purchase
agencies, or check-in counters located in         of the ticket at the carrier's agencies, travel
the territory of a Member State. Air              agencies, or check-in counters located in
carriers shall on request provide the             the territory of a Member State. Air
passengers with a form setting out their          carriers shall on request provide the
conditions. The fact that the limit is            passengers with a form setting out their
indicated on the ticket document does not         conditions. The fact that the limit is
constitute sufficient information.                indicated on the ticket document does not
                                                  constitute sufficient information.
                                            Article 6
1. Once a year Member States' authorities         1. Once a year Member States' authorities
shall notify the list of third country air        shall notify the list of third country air
carriers not subject to the rules of this         carriers not subject to the rules of this
Regulation to the Air Transport User              Regulation and operating to. from and
Organisations concerned and to the                within the Community, to the Air Transport
Commission, which shall make them                 User Organisations concerned and to the
available to the other Member States.             Commission, which shall make them
                                                  available to the other Member States.
                                                  2. Whenever the Commission shall conduct
                                                  negotiations in relevant fields of civil
                                                  aviation with third countries on behalf of
                                                  the Community, it shall seek to incorporate
                                                  the provisions of this Regulation into the
                                                  Agreements.
                                            Article 7
A person entitled to compensation in the          An action for damages in the case of
case of accidents involving Community air         accidents involving Community air carriers
carriers may, in addition to the rights           may, in addition to the rights conferred by
conferral by article 28 of the Warsaw             article 28 of the Warsaw Convention, be
 Convention bring an action for liability         brought before the courts of the Member
 before the courts of the Member State            State where the passenger at the time of the
 where the passenger has his domicile or          accident had his domicile.
 permanent residence.
                                                11
 ---pagebreak---                                          Article 7A
                                                 In the event of death, wounding or anv
                                                bodily injury suffered by a passenger,
                                                 nothing in this Regulation shall
                                                 a) imply that a Community air carrier is the
                                                 sole party liable to pay damages or
                                                 b) restrict anv rights of a Community air
                                                 carrier to contribution or indemnity from
                                                 anv other party in accordance with
                                                 applicable law.
                                           Article 8
The Commission may, after consulting the         The financial amounts       referred to in
advisory Committee established according         articles 3 and 4 may be increased as
to article 9, decide to increase as              appropriate, according to the procedure set
appropriate the values referred to in articles   in article 9 § 2 if economic developments
3 and 4 if economic developments indicate        indicate the necessity of such a decision,
the necessity of such a decision. Such           Such decision shall be published in the
decision shall be published in the Official      Official Journal of the European
Journal of the European Communities.             Communities.
                                               12
 ---pagebreak---                                         Article 9
l.The Commission shall be assisted by a l.The Commission shall be assisted by a
Committee of an advisory nature composed Committee of an advisory nature composed
of the representatives of the Member States of the representatives of the Member States
and chaired by the representative of the and chaired by the representative of the
Commission.                                   Commission.
The representative of the Commission shall    2. Unchanged
submit to the committee a draft of the
measures to be taken. The committee shall
deliver its opinion on the draft, within a
time limit which the chairman may lay
down according to the urgency of the
matter, if necessary by taking a vote.
The opinion shall be recorded in the
minutes; in addition each Member State
shall have the right to ask to have its
position recorded in the minutes.
The Commission shall take the utmost
account of the opinion delivered by the
committee. It shall inform the committee of
the manner in which its opinion has been
taken into account.
2.Furthermore, the Committee may be 3. At the Commission request, the
consulted by the Commission on any other Committee may examine any other question
question concerning the application of the concerning the application of the present
Regulation.                                   Regulation.
                                       Article 9A
                                              The Commission shall present an evaluation
                                              report on the operation of this Regulation
                                              to the Social and Economic Committee, to
                                              the European Parliament and to the Council
                                              by 31 December 1999.
                                            13
 ---pagebreak---  ---pagebreak---                                                                   ISSN 0254-1475
                                                           COM(96) 663 final
                                             DOCUMENTS
EN                                                                       07 06
                                    Catalogue number : CB-CO-96-675-EN-C
                                                             ISBN 92-78-13353-1
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