Common use of Court of Justice of the European Union Clause in Contracts

Court of Justice of the European Union. In 2019 in Niki,73 the CJEU, in this section also referred to as the ‘EU Court’, was asked to rule on this controversial issue. Following the burning of a passenger by a hot beverage during a flight, it had to give its own view of the term ‘accident’. The defendant contended that a cup of coffee falling from the folding tray table onto the passenger was not the ‘materialisation of a hazard typically associated with aviation’,74 which was necessary to be considered as an ‘accident’ in Austria. The EU Court, seized by the highest Austrian Court, ruled in favour of an extensive interpretation, holding that an ‘accident’ under the 1999 Montreal Convention ‘covers all situations occurring on board an aircraft in which an object used when serving passengers has caused bodily injury to a passenger, without it being necessary to examine whether those situations stem from a hazard typi- cally associated with aviation’.75 In doing so, the CJEU rejected the position adopted in Germany and in Austria, but did not clearly align itself with existing consensus in leading common law jurisdictions. While the EU Court appears to have put an end to the controversy regarding the need for a direct link with hazards associated with aviation, its reasoning was nevertheless confusing. First, while the EU Court recalled the importance of a uniform application of the 1999 Montreal Convention,76 it gave, with no reasoning, an initial gist of the term ‘accident’ that was quite distinct from the one commonly admitted in many jurisdictions. When the American Supreme Court referred to ‘unexpected or unusual event or happening’, the EU Court used the expression ‘unforeseen, harmful and involuntary event’77 in its reasoning, replacing the notion of ‘unusual’ by ‘involuntary’ yet kept by its Advocate General.78 This change does not have a clear explanation and could be understood as any voluntary harmful event being outside the scope of the Convention, which would appear surprising in a uniform strict liability regime. Second, while there was a general view to consider that the event must be external to the passenger,79 the EU Court, again without clear explanation, drafted its decisions in a way that could lead us to believe that death or injury resulting from the passenger’s health could trigger carrier liability,80 which in turn could only be exonerated therefrom pursuant to Articles 20 and 21 of said convention. 73 CJEU, 19 December 2019, GN v. ZU acting for Xxxx Xxxxxxxxx, C-532/18, ECLI:EU:C: 2019:1127. 74 Ibid., point 17. 75 Ibid., point 43. 76 Ibid., point 32. 77 Ibid., point 35. 78 CJEU, 26 September 2019, GN v. ZU acting for Xxxx Xxxxxxxxx, C-532/18, ECLI:EU:C:2019:788 (Opinion), point 62. 79 Ibid., point 44. 80 CJEU, 19 December 2019, GN v. ZU acting for Xxxx Xxxxxxxxx, C-532/18, ECLI:EU:C: 2019:1127, point 38. This is particularly curious given that these last two provisions are not event-orientated provisions, but damage-related ones.81 Despite the hierarchical place of the EU Court, this decision only responded to the question of whether the term ‘accident’ in specie required a hazard typically associated with aviation in a situation where an object used to serve passengers had caused bodily injury to a passenger. The EU Court was not therefore asked to give a definition of the term ‘accident’. Consequently, the whole jurisprudence established in each Member State is not automatically overruled by this decision, and may remain diversified, despite the aim of uniformity of the Convention, as long as no hazard typi- cally associated with aviation be requested. In 2021, the EU Court fine-tuned its position regarding the scope of the ‘unforeseen’ event in Altenrhein.82 It confirmed that the unforeseeability was to be looked from the operating range of the aircraft on board which the event occurred, and not from that of the passenger.