Beiträge

Lexology GTDT: Air Transport in Austria

We are happy to share that our aviation law team was chosen to author the chapter on Air Transport in Austria in the latest edition of Lexology´s Getting the Deal Through (GTDT).

The GTDT´s aim is to give readers quick access to country specific insights to a variety of topics. Thus, it is crucial for contributors to have a wide range of expertise while also being able to deliver relevant information in a compact, but still comprehensive way.

Luckily, our aviation team was perfectly prepared for this challenge. With our partner, Martina Flitsch, leading the way with her over 25 years of experience in the aviation field assisted by our two associates, Dominik Weiß and Aleksander Makal, who were, despite their young age, already able to gather several years of experience in advising many players on a variety of aviation related topics.

We invite you to check out the GTDT on Air Transport in Austria via the link below and to reach out to us for further information.

https://www.lexology.com/account/activatetempaccess/?sl=k9MfkFc3TN_2pSjeLv1ooIwbCk

Air carriers can be liable for psychological injuries caused by accidents

The Montreal Convention is a multilateral treaty for the unification of several rules for international air carriage to which 136 states and the European Union are parties. It is of major significance for the aviation sector and contains, inter alia, provisions on an air carrier´s liability in case of an international flight. Article 17 of the Montreal Convention stipulates that an air carrier is liable for damage sustained in case of death or bodily injury of a passenger caused by an accident that took place on board of an aircraft or while embarking or disembarking.

Since the term “bodily injury” is not defined in the Montreal Convention, questions were raised whether air carriers can also be held liable for psychological injuries caused by an accident.

In case C111/21, the Court of Justice of the European Union (CJEU) had to deal with such a case. The passenger in question embarked a flight operated by the former Austrian air carrier Laudamotion between London and Vienna. During take-off, the left engine of the aircraft exploded, causing an evacuation of the passengers. The passenger in question disembarked the aircraft via the emergency exit and was hurled several metres through the air by the jet blast from the right engine, which had not yet been shut down. As a consequence, the passenger suffered not only physical, but also psychological harm.

The Austrian courts (District Court Schwechat and upon an appeal the Regional Court Korneuburg) were of the opinion that psychological injuries do not fall within the meaning of “bodily injury” and are therefore not covered by Article 17 of the Montreal Convention. However, the passenger brought the case before the Austrian Supreme Court, which decided to refer this question to the CJEU.

The CJEU argued by taking into account the preparatory works which led to the Montreal Convention and its objectives that the situation of a passenger who has suffered a psychological injury as a result of an accident may be comparable to that of a passenger who has suffered bodily injury. Consequently, the CJEU stated that according to Article 17 of the Montreal Convention air carriers are liable for psychological injury, which is not linked to bodily injury. However, only if the passenger can demonstrate (by means in particular of a medical report and proof of medical treatment) the existence of an adverse effect on his psychological integrity of such gravity that it affects his general state of health and that it cannot be resolved without medical treatment.

Recent CJEU decisions on the consequences of a travel agency´s actions for air carriers

In two recent decisions, the Court of Justice of the European Union (CJEU) dealt with the consequences an air carrier faces for certain actions taken by travel agencies in context with Regulation 261/2004.

In case C-307/21, the passengers booked flights from Düsseldorf to Tangier via the travel agent Kiwi.com. The air carrier was provided with an e-mail address, which was most likely automatically generated by Kiwi.com and to which the passengers had no access. In the following, the air carrier sent an e-mail to this e-mail address in order to inform the passengers about the cancellation of their flight. Since this e-mail has been sent 14 days prior to the date of the scheduled flight, it would have complied with Article 5 (1) (c) (i) of Regulation 261/2004, resulting in the passengers not being entitled to receive a compensation within the meaning of Article 7 of Regulation 261/2004. However, Kiwi.com did not forward this e-mail to the passengers.

The CJEU decided on 27 September 2022 that the air carrier is obliged to pay a compensation to the passengers if the travel agency didn´t forward the air carrier´s e-mail in due time even if the air carrier was not aware of the fact that the e-mail address it has been provided with could only be used to contact the travel agency and not the passengers directly.

In case C‑436/21, a passenger booked the following itinerary: Stuttgart-Zurich-Philadelphia-Kansas City. The flight from Stuttgart to Zurich was operated by Swiss International Air Lines AG, while the other two flights were operated by American Airlines. This itinerary was booked via a travel agency in the form of a single electronic ticket with a single user price for the entire journey and the number of this ticket was displayed on the boarding passes relating to the flights. While the previous flights were on time, the flight from Philadelphia to Kansas City was delayed by more than four hours.

During the proceedings initiated in Germany against American Airlines, the involved German courts stated that Regulation 261/2004 does not apply, since American Airlines did not operate a flight departing from the territory of a member state of the EU. According to the German courts, there was nothing to indicate that American Airlines had undertaken to transport the passenger from Stuttgart to Kansas City, or that it had assumed responsibility for that transportation under a code sharing agreement. Subsequently, the case was brought before the German Supreme Court and the CJEU.

In its ruling rendered on 6 October 2022, the CJEU stated that – in the interest of the high level of protection for passengers – the concepts of “connecting flights” and “reservations” must be interpreted broadly, which lead to the CJEU´s decision that there has been a connecting flight even though the operating air carriers did not have a specific legal relationship. Therefore, the place of departure (Stuttgart, Germany) is of relevance, Regulation 261/2004 is applicable, and the passenger may be entitled to a compensation payment for the delay of his last flight leg.

Legal fees and no-reply email addresses

Many questions of our airline clients concern legal fees demanded by passengers and under what circumstances these fees must be paid. Especially when letters of notice are sent to no-reply email addresses and subsequently lawsuits are filed, there are often uncertainties. The aim of today´s article is to briefly illustrate the Austrian system concerning the reimbursement of legal fees and to answer the question if legal fees must be paid when a letter of notice has merely been sent to a no-reply email address.

Airlines are often confronted by letters of notice sent by a lawyer with which not only a ticket reimbursement or compensation payment is demanded, but also legal fees for the lawyer´s work. Such legal fees must only be paid if the involvement of a lawyer was necessary for the passenger. This is the case if, e.g., the passenger already contacted the airline himself, but the airline refused to pay the demanded amount or did not react to the passenger´s query. Additionally, according to court practice, it can be necessary to involve a lawyer if the airline fails to inform the passenger about his rights granted by the Regulation 261/2004 (in violation of Article 14 of this regulation).

In Austrian court proceedings, the prevailing party is entitled to receive a reimbursement of its legal fees by the opponent (in case of a partial victory: on a pro rata basis). These legal fees are calculated in accordance with the Lawyers Tariffs Act (Rechtsanwaltstarifgesetz), regardless of any possible separate agreement between lawyer and client regarding the remuneration.

However, also these legal fees are only reimbursed if the respective actions (e.g., filing a lawsuit) have been necessary. If the passenger (or his lawyer) did not contact the airline before filing a lawsuit, the airline can refuse to pay his legal fees and even demand reimbursement for its own legal fees if it acknowledges and pays the passenger´s claim at the first moment possible.

The Commercial Court Vienna had to deal with a case in which the passenger did not contact the airline first and his lawyer sent a letter of notice only to a no-reply email address used by the airline. The lawyer ignored the standardized reply email that asked him to use another email address for his query and filed a lawsuit. Subsequently, the airline acknowledged and paid the claim without undue delay, refused to pay the passenger´s legal fees and demanded reimbursement for its own legal fees. The Commercial Court Vienna decided in the airline´s favor (case number: 60 R 42/21p).

The breakdown of an airport´s refueling system constitutes extraordinary circumstances

On 7 July 2022, the European Court of Justice (ECJ) decided that the breakdown of an airport´s refueling system constitutes extraordinary circumstances within the meaning of Article 5 (3) of Regulation 261/2004 (case C-308/21).

In its reasoning, the ECJ once more pointed out the criteria it regards relevant when it comes to extraordinary circumstances: the events that occurred must not be inherent in the normal exercise of the activity of the air carrier concerned and they must be beyond the air carrier´s actual control.

Regarding the first criterion, the ECJ stated that, in principle, refueling operations fall within the scope of the normal exercise of an air carrier´s activity and that, therefore, a technical issue arising during the refueling would not be suitable to constitute extraordinary circumstances. However, a general failure in the refueling system managed by the airport must be treated differently than a technical issue that, by its nature, is only confined to a single aircraft. Therefore, the ECJ came to the conclusion that such general failures of the refueling system are not inherent in the normal exercise of the activity of the air carrier concerned.

Regarding the second criterion, the ECJ once again highlighted the importance of the distinction between “internal” and “external” events, whereas only “external” events are regarded to be beyond the air carrier´s actual control. Therefore, if the refueling system at an airport is managed by this airport or a third party, a general breakdown of this system is regarded to be beyond the air carrier´s control.

Since both criteria of extraordinary circumstances are met, the ECJ decided that the general breakdown of an airport´s refueling system constitutes extraordinary circumstances. Therefore, the respective air carrier is not obliged to pay compensation to the passengers, provided that all reasonable measures were taken.