1. This request for a preliminary ruling concerns the interpretation of Article 3(g) of Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on insurance requirements for air carriers and aircraft operators (OJ 2004 L 138, p. 1), and also Article 17(1) of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999, signed by the European Community on 9 December 1999 on the basis of Article 300(2) EC, approved on behalf of the EC by Council Decision 2001/539/EC of 5 April 2001 (OJ 2001 L 194, p. 38) (‘the Montreal Convention’).
2. The request has been made in ‘revision’ proceedings between Wucher Helicopter GmbH, an Austrian air carrier (‘Wucher’) and Euro-Aviation Versicherungs AG (‘Euro-Aviation’), a German insurance company and Mr Santer, concerning compensation for Mr Santer for an injury suffered in an accident which occurred on a flight. Legal context International law
3. Article 3(1), (2) and (5) of the Montreal Convention is worded as follows: ‘1. In respect of carriage of passengers, an individual or collective document of carriage shall be delivered containing: (a) an indication of the places of departure and destination; (b) if the places of departure and destination are within the territory of a single State Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place. 2. Any other means which p reserves the information indicated in paragraph 1 may be substituted for the delivery of the document referred to in that paragraph. If any such other means is used, the carrier shall offer to deliver to the passenger a written statement of the information so preserved. ... 5. Non-compliance with the provisions of the foregoing paragraphs shall not affect the existence or the validity of the contract of carriage, which shall, none the less, be subject to the rules of this Convention including those relating to limitation of liability.’
4. Article 17(1) of that convention provides: ‘The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.’ EU law
5. Non-compliance with the provisions of the foregoing paragraphs shall not affect the existence or the validity of the contract of carriage, which shall, none the less, be subject to the rules of this Convention including those relating to limitation of liability.’ 4. Article 17(1) of that convention provides: ‘The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.’ EU law 5. Regulation (EC) No 2027/97 of the Council of 9 October 1997 on air carrier liability in respect of the carriage of passengers and their baggage by air (OJ 1997 L 285, p. 1) was amended by Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002 (OJ 2002 L 140, p. 2) (‘Regulation No 2027/97’).
6. Recital 8 in the preamble to Regulation No 889/2002 reads: ‘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.’
7. Article 1 of Regulation No 2027/97 provides: ‘This Regulation implements the relevant provisions of the Montreal Convention in respect of the carriage of passengers 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.’
8. Article 2(2) of that regulation provides: ‘Concepts contained in this Regulation which are not defined in paragraph 1 shall be equivalent to those used in the Montreal Convention.’
9. Article 3(1) of that regulation provides: ‘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.’
10. Article 3(g) of Regulation (EC) No 785/2004 provides: ‘For the purposes of this Regulation: ... (g) “passenger” means any person who is on a flight with the consent of the air carrier or the aircraft operator, excluding on-duty members of both the flight crew and the cabin crew; ...’
11. Point 1.c of Annex IV to Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency, and repealing Council Directive 91/670/EEC, Regulation (EC) No 1592/2002 and Directive 2004/36/EC (OJ 2008 L 79, p. 1) reads as follows: ‘Before every flight, the roles and duties of each crew member must be defined. The pilot in command must be responsible for the operation and safety of the aircraft and for the safety of all crew members, passengers and cargo on board.’ The dispute in the main proceedings and the questions referred for a preliminary ruling
12. On 9 February 2009, Mr Santer, as occupant of a helicopter owned by Wucher, which had taken out mandatory civil liability insurance with Euro-Aviation, was seriously injured while on a domestic flight over the glacier territory of Sölden (Austria).
13. Mr Santer is employed by Ötztaler Gletscherbahn-GmbH & Co. KG (‘Ötztaler’) and, as a member of the avalanche commission, is responsible for safety in the glacier area and his employer’s ski pistes. He has to decide which pistes must be closed and where avalanches need to be blasted. Blasting is carried out from a helicopter.
14. On the day of the accident, Wucher was engaged by Ötztaler for an ‘avalanche blasting flight’. During that flight, the pilot, an employee of Wucher, flew with Mr Santer and two other persons who were also employees of Ötztaler. Mr Santer directed the pilot to the places where the explosive charges were to be thrown out. His other task on that mission was to open the helicopter door when the pilot gave the word and to hold it open as wide and for as long as the blaster sitting behind him needed to throw out the charge. During that procedure, a sudden gust of wind gripped the slightly opened door, causing it to fly open. Since Mr Santer was unable to let go of the door loop in time, he suffered a serious injury to the elbow joint.
15. Mr Santer brought a claim for damages before the Austrian court of first instance, seeking compensation from Wucher and Euro-Aviation. That court held that the action for damages was, in principle, well founded and held that Mr Santer had travelled as a passenger. Considering that the limitation on liability in respect of the employer was not applicable, that court held that Wucher and Euro-Aviation were liable under Austrian law.
16. The appellate court upheld the judgment at first instance, but considered that Mr Santer had not travelled as a ‘passenger’ within the meaning of the Montreal Convention, since the purpose had not been to carry him from one place to another, but rather that the principal objective of the flight had been the blasting of avalanches using explosives. That court held that Regulation No 2027/97 did not preclude the application of Austrian law, since the Montreal Convention, referred to by that regulation, applies to passengers and their baggage.
17. The appellate court concluded that Wucher was liable for the harm suffered by Mr Santer because fault on the part of the pilot was attributable to it and because of its own organisational failings. The contractual relationship between Mr Santer’s employer and Wucher gave Mr Santer a contractual right of his own to compensation. In that court’s view, Austrian law prescribed increased liability on Wucher by statute and, consequently, ruled out the possibility of limiting liability.
18. The appellants in the main proceedings brought an action for review on a point of law (‘revision’) against that judgment before the Oberster Gerichtshof (Austrian Supreme Court), arguing that the appellate court misinterpreted Regulation No 2027/97 and failed to uphold the limitation on the employer’s liability on the ground that, in their submission, Mr Santer was not a passenger but rather a member of the crew, which precludes the application of Austrian law on social insurance.
19. The Oberster Gerichtshof takes the view that the question whether Mr Santer is to be considered a ‘passenger’ is crucial for the application of the liability regime of the Montreal Convention. That court observes that the concept is not defined in the Montreal Convention or in the Court of Justice’s case-law. Similarly, it observes that a flight carried out for a specific purpose is in a number of bodies of rules considered to be not commercial transport but ‘aerial work’. The Oberster Gerichtshof expresses doubts, however, about the possibility of ascribing the statute of ‘passenger’ to Mr Santer, on the one hand, or possibly the status of ‘member of the crew’ or ‘third party’, on the other. Its view is that, in order to foster consumer protection, it is important to ensure a proper minimum level of insurance and that a common understanding of the concept of ‘passenger’ in EU law and in the Montreal Convention is in order.
20. In those circumstances, the Oberster Gerichtshof decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling: ‘1. Is Article 3(g) of [Regulation No 785/2004] to be interpreted as meaning that the occupant of a helicopter held by a Community air carrier, - who is carried on a contractual basis (specifically: a contract between the air carrier and the occupant’s employer), - but who is carried for the purpose of a particular job of work (specifically: the blasting of avalanches) and - who is involved in that operation as a “guide familiar with the terrain” and must at the pilot’s direction open the helicopter door during the flight and then hold it open in a particular manner and for a particular period of time, (a) is a “passenger” or (b) ranks among “on-duty members of both the flight crew and the cabin crew”? 2. If Question 1(a) is answered in the affirmative: Is Article 17(1) of the [Montreal Convention] to be interpreted as meaning that the term “passenger” (German: “Reisender”) in any event includes a “passenger” (German: “Fluggast”) within the meaning of Article 3(g) of Regulation (EC) No 785/2004? 3. If Question 2 is answered in the negative: Is Article 17(1) of the Montreal Convention to be interpreted as meaning that under the conditions stated in Question 1 the occupant of a helicopter held by a Community air carrier is a “passenger” (“Reisender”)?’ Consideration of the questions referred for a preliminary ruling The first question
21. By its first question, the referring court asks, in essence, whether Article 3(g) of Regulation No 785/2004 must be interpreted as meaning that the occupant of a helicopter held by a Community air carrier, who is carried on the basis of a contract between that air carrier and the occupant’s employer in order to perform a specific task, such as that at issue in the main proceedings, is a ‘passenger’ or is among the ‘members of both the flight crew and the cabin crew’ within the meaning of that provision.
22. In order to answer that question, it must be remembered that the concept of ‘passenger’ within the meaning of Article 3(g) of Regulation No 785/2004, includes any person who is on a flight with the consent of the air carrier or the aircraft operator, excluding on-duty members of both the flight crew and the cabin crew.
23. It follows that classifying a person as a member of the flight crew and the cabin crew is an exception to the rule under which that person falls into the category of passenger.
24. It should be noted at the outset that it is settled case-law that exceptions are to be interpreted strictly so that general rules are not negated (see judgment in Commission v United Kingdom , C‑346/08, EU:C:2010:213, paragraph 39 and the case-law cited).
25. Consequently, it must first be examined whether or not the respondent in the main proceedings is a member of ‘the flight crew’ or ‘the cabin crew’.
26. In the main proceedings, it is apparent from the description of the facts as set out by the referring court that Mr Santer, an employee of a company operating ski pistes, flew as a ‘guide familiar with the terrain’ whose task was to open the helicopter door at the pilot’s direction and then hold it open in a particular manner and for a particular period of time.
27. It follows that since Mr Santer did not perform tasks of the flight crew of the aircraft he does not fall into the category of ‘member of the flight crew’.
28. Moreover, contrary to Wucher’s line of argument, the fact that Mr Santer had the task of opening the helicopter door at the pilot’s direction does not suffice to confer on Mr Santer the status of ‘member of the cabin crew’. In fact, the pilot, in his or her capacity as commander on board, is always authorised to give instructions to any of the people on board the aircraft, including the passengers.
29. It follows that nor does Mr Santer fall into the category of ‘member of the cabin crew’.
30. Consequently, it must be held that a person such as Mr Santer must be considered a passenger within the meaning of Regulation No 785/2004.
31. In the light of the foregoing considerations, Article 3(g) of Regulation No 785/2004 must be interpreted as meaning that the occupant of a helicopter held by a Community air carrier, who is carried on the basis of a contract between that air carrier and the occupant’s employer in order to perform a specific task, such as that at issue in the main proceedings, is a ‘passenger’ within the meaning of that provision. Consideration of the second and third questions
32. By its second and third questions, which it is appropriate to consider together, the referring court asks, in essence, whether Article 17 of the Montreal Convention must be interpreted as meaning that a person who comes within the definition of ‘passenger’ within the meaning of Article 3(g) of Regulation No 785/2004, also comes within the definition of ‘passenger’ within the meaning of Article 17 of that convention.
33. It is common ground in that regard that the Montreal Convention forms an integral part of the European Union legal order and that the Court has jurisdiction to give a preliminary ruling concerning its interpretation (see judgments in IATA and ELFAA , C‑344/04, EU:C:2006:10, paragraph 36 and the case-law cited and paragraph 40, and Walz , C‑63/09, EU:C:2010:251, paragraph 20 and the case-law cited).
34. That convention became applicable to flights within a single Member State by virtue of Regulation No 2027/97, the purpose of which is to endure the same level and nature of liability for air carriers and EU air carriers in international and national transport throughout the European Union.
35. As is apparent from the order for reference, Wucher comes within the definition of ‘Community air carrier’ to which Regulation No 2027/97 applies, since it is an air transport undertaking holding a valid operating licence issued by the Republic of Austria in accordance with the provisions of Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers (OJ 1992 L 240, p. 1).
36. It must accordingly be examined whether the other conditions for the application of the Montreal Convention are fulfilled in the main proceedings. In that regard it must be ascertained whether Mr Santer comes within the concept of ‘passenger’ within the meaning of that convention, which entails ascertaining whether the purpose of the flight at issue in the main proceedings was the ‘carriage of passengers’ within the meaning of that convention.
37. To that end, it must be noted that under Article 3(1) and (2) of the Montreal Convention the status of ‘passenger’ within the meaning of that convention is linked to the issuance of an individual or collective document of carriage, the content of which is defined in Article 3(1) or, in the alternative, another type of document with the same content.
38. However, it also follows from Article 3(5) of that convention that non-compliance with the provisions of the paragraphs preceding that paragraph do not affect the existence or the validity of the contract of carriage, which, none the less, is to be subject to the rules of that convention including those relating to limitation of liability.
39. Accordingly, where a contract of carriage exists and all the other conditions for the application of that convention are fulfilled, it applies, irrespective of which form that contract of carriage might take.
40. It is apparent from the order of reference that Mr Santer was an employee of Ötztaler and, in his capacity as a member of the avalanche commission responsible for safety in the glacier area and the ski pistes, performed the task of avalanche blasting as part of his usual tasks. It was, moreover, precisely on a contractual basis that Wucher flew Mr Santer and the other employees of Ötztaler from the take-off location to the places where the avalanche blasting was to take place and then bring them back to the take-off location.
41. It follows that the purpose of the flight at issue in the main proceedings was the carriage of employees of Ötztaler to the places where they had to perform their usual tasks.
42. It follows from the foregoing that Article 17 of the Montreal Convention must be interpreted as meaning that a person who comes within the definition of ‘passenger’ within the meaning of Article 3(g) of Regulation No 785/2004, also comes within the definition of ‘passenger’ within the meaning of Article 17 of that convention, once that person has been carried on the basis of a ‘contract of carriage’ within the meaning of Article 3 of that convention. Costs
43. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.