Axel Walz v Clickair S.A, Opinion of Advocate General, Case C 63/09, 26 January 2010.
A dispute on baggage liability limits under the Montreal Convention 1999 is being considered by the European Court of Justice. The case concerns the type of damages covered by Convention liability limits and reinforces the position that the Convention is now part of European Community law and construed as such.
An Advocate General's Opinion is a preliminary stage in proceedings when a case is referred to the European Court of Justice (ECJ) for a ruling on a matter pertaining to EU law. Whilst the Opinion is not binding on the ECJ when it later comes to decide on its judgment, it is nevertheless often followed and is therefore some guide to what the Court's judgment may turn out to be.
In Walz, the referral to the ECJ concerns the question of what type of loss and damage is covered by the 1,000 SDR limit of liability for loss, damage or delayed baggage in claims covered by the Montreal Convention 1999 (MC99). Mr Walz's suitcase was lost during a flight from Barcelona to Porto operated by Clickair. He claimed damages of €3,200: €2,700 for the value of the luggage and €500 for non-material damage. Clickair challenged the claim as it exceeded the 1,000 SDR limit provided for in Article 22.2 of MC99. The Spanish court noted the lack of specificity in MC99 as to what type of damage the limit of liability for baggage covers as well as noting a previous case in July 2008 heard by the Provincial Court in Barcelona in which the Court held that the MC99 limit of liability did not include both material and non-material damage and that each such head of claim had the benefit of its own separate 1,000 SDR limit. In need of guidance, the Spanish court referred the question to the ECJ for a preliminary ruling.
In the view of the Advocate General, the 1,000 SDR limit specified in MC99 is a financial limit on the carrier's liability, not a limit or description of what the liability actually covers. MC99 uses only the general concept of "damage" in fixing the carrier's liability relating to baggage claims at 1,000 SDRs and, in the opinion of the Advocate General, there is nothing in the Convention to indicate any intention on the part of the Contracting States to limit liability to material damage or, as the case may be, to non-material damage. It is therefore for national law in any given case to decide what types of damage will be the subject of compensation under MC99 but subject always to the Convention limit of 1,000 SDRs.
The Opinion in itself is unsurprising, albeit confirmation of the construction of Article 22.2 of MC99. It is of interest, however, to note how the Convention, as well as being an international treaty, is now readily regarded as being part of European Community law and therefore susceptible to interpretation by the ECJ. The ECJ has shown itself to have a significant pro-consumer leaning in some of its recent decisions in the field of air passenger rights which have departed significantly from existing understanding and interpretation of regulations in that area and which continue to be the subject of significant controversy. A close eye will need to be kept on cases such as Walz which require the ECJ to construe provisions of MC99; the hope must be that the ECJ will approach questions of interpretation with a view to the desirability of MC99, as an international liability regime for carriage by air, being uniformly applied and construed.
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