Austrian Supreme court asks CJEU for interpretion of Reg. 785/2004 and the Montreal Convention

Michael Wukoschitz's picture

In a recent decision, the Austrian Supreme Court (OGH) has filed a reference for preliminary ruling to the CJEU with regard to 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 and the Montreal Convention.

In the case concerend, the plaintiff had been seriously injured while on board of a helicopter during a domestic flight in Alpine regions. The plaintiff was a member of the local Avalange Rescue Commission and thus responsible for the safety of a skiing area. In this capacity, he took part in the flight in order to direct the pilot to certain spots where explosive charges were to be dropped. At one of the blastings, his elbow was injured by the cabin door which was suddenly shut by a wind gust.

The questions referred to the CJEU are:

1) Is article 3 lit g) of Regulation (EC) No 785/2004 to be interpreted in a way that the occupant of a helicopter

  • who took part in the flight according to a contract entered into between his employer and the air carrier,
  • for the purpose of a work assignment,
  • as a guide to the pilot and with the task to open the cabin door at a certain occasion and keep it open for a certain period

can be qualified as a "passenger" or is he to be qualified as an "on-duty member of the flight crew or cabin crew" rather?

2) If he qualifies as a passenger according to article 3 lit g) of Regulation (EC) No 785/2004, is Article 17 para 1 of the Montreal Convention to be interpreted in a way that any passenger according to article 3 lit g) of Regulation (EC) No 785/2004 also is a "passenger" according to the Montreal Convention?

3) If question 2 is answered to the negative, is Article 17 para 1 of the Montreal Convention to be interpreted in a way that an occupant of a helicopter as described in question 1) is covered by the term "passenger"?

Case details: OGH Decision 2 Ob 259/12w of Dec. 19, 2013; find full text in German here>>.

 

X