Landmark judgment of the EU Court of Justice clarifies the concept of ‘passenger’ in air transport

On February 26th 2015 the Court of Justice of the European Union delivered a judgment on the interpretation of Regulation (EC) No 785/2004 on insurance requirements for air carriers and aircraft operators, as well as on the Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28th May 1999, signed by the European Community on 9 December 1999, and approved by Council Decision 2001/539/EC of 5th April 2001. This decision closed Case C-6/14, Wucher Helicopter GmbH and Euro-Aviation Versicherungs AG v Fridolin Santer and for the first time clarified the definition of passenger in the above-mentioned Regulation 785/2004.

The case originated from a request for a preliminary ruling to the Court of Justice of the EU submitted by the Austrian Oberster Gerichtshof (Supreme Court) in the proceedings between an Austrian air carrier, its German insurance company and an expert in the blasting of avalanches. The object of the main proceedings was compensation for an injury that the expert, Mr. Santer, had suffered in an accident which occurred during a flight in a helicopter owned by the Austrian carrier. Mr Santer was injured when the door of the helicopter flew open while he was holding it, so that explosives could be thrown to blast an avalanche. This was his task according to his employment contract with a third company, which had in turn entered into a contract with the air carrier for the transport of its employees.

Mr. Santer’s claim for compensation was successful at first instance: the Austrian judge held that the action for damages was well-founded and that he had travelled as a passenger. Thus the carrier and its insurers were found liable under Austrian law. Although the liability was upheld by the appellate court, the latter considered that Mr. Santer had not travelled as a passenger within the meaning of the Montreal Convention, since the purpose of the flight had not been to carry him from one place to another, but to allow him to perform his job. The appellants then brought an action for review on a point of law before the Austrian Supreme Court, with the view that Austrian law was not applicable and that Mr. Sander was not a passenger but a member of the crew, so no compensation was due to him.

Therefore, the Austrian Supreme Court decided to ask the European Court whether Article 3(g) of Regulation 785/2004 was to be interpreted as meaning that the occupant of a helicopter held by a Community air carrier, who is carried on a contractual basis for the purpose of a particular job as a guide familiar with the terrain, is a passenger or a member or the flight or cabin crew. It also asked whether the term ‘passenger’ in Article 17(1) of the Montreal Convention should be interpreted as equivalent to the meaning of ‘passenger’ in Article 3(g) of the aforesaid Regulation.

In order to answer the first question, the EU Court first remembered that “the concept of ‘passenger’ within the meaning of Article 3(g) of Regulation 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.” As a result, the rule is that persons on board are classified as passengers, while members of the flight or cabin crew are the exception. The Court then noted that, according to its settled case-law, “exceptions are to be interpreted strictly so that general rules are not negated.”

As Mr. Santer did not perform any tasks typical of the flight crew, the Court concluded that he could not be considered as a member of it. Moreover, the Court held that the fact that the expert had the task of opening the helicopter door at the pilot’s direction did not suffice to confer on him the status of ‘member of the cabin crew’. In fact, it was observed in the judgment that the pilot is always authorised to give instructions to anyone on board the aircraft, including passengers. Consequently, the Court deemed that a person such as Mr. Santer must be considered a passenger within the meaning of Regulation 785/2004.

Regarding Article 17 of the Montreal Convention, the point of departure of the reasoning of the Court was that the Convention is an integral part of the EU legal order, which moreover became applicable to domestic flights by virtue of Regulation 2027/97. The Court then observed that Article 3(1) and (2) of the Montreal Convention link the status of ‘passenger’ to the issuance of an individual or collective document of carriage, or another type of document with the same content. However, Article 3(5) states that the absence of those documents does not affect the existence or the validity of the contract of carriage, which is all the same subject to the rules of the Convention, including those relating to limitation of liability. Article 17(1) provides in its turn that the carrier is liable for damage in case of death or bodily injury of a passenger, as long as 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.

Since Mr. Santer was an employee who was flown on a contractual basis for the performance of his usual tasks, from the take-off location to the places where the avalanche blasting was to take place and then back to the take-off location, the Court considered the purpose of the flight at issue in the main proceedings to be the carriage of employees to the places where they had to perform their job. Consequently, the Court concluded 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 785/2004, also comes within the definition of ‘passenger’ within the meaning of Article 17, once that person has been carried on the basis of a ‘contract of carriage’ within the meaning of Article 3 of that convention.

In conclusion, the rules contained in both Regulation 785/2004 and in the Montreal Convention are applicable to air carriers and aircraft operators within the EU with respect to passengers, i.e. any person who is not a member of the flight or cabin crew. This latter concept must be interpreted strictly, so the aforesaid rules on insurance, liability and jurisdiction will be applicable in most cases.