In the last issue of BLG Aviation News we commented on some of the main changes to Regulation 2027/97 on air carrier liability in the event of accidents. Here we address the revised notification requirements and issues surrounding the point at which the revised Regulation will be applicable.
NOTIFICATION REQUIREMENTS
"APPLICATION"
The amended Regulation will not bring the Montreal Convention into force for the Community but will apply a modified version of that treaty to carriage performed by Community air carriers, such that a number of the issues associated with the original regulation may arise again. Even in the application of the Montreal regime there remain unsatisfactory aspects. It clearly applies to domestic carriage. It clearly applies to carriage governed by Montreal on the latter’s own terms. But what of international carriage not properly subject to Montreal - for instance where a Community air carrier based in a Montreal state operates to a Warsaw/Hague state? Clearly the desire is that Montreal should apply for that carriage.
The arguments on the conflict between Regulation 2027/97 and Member States’ obligations under Warsaw not to require their own carriers to operate on a different basis from those of other states party to Warsaw, considered by Jowitt J in the 1999 challenge before the English Courts to Regulation 2027/97, will however be expressed differently. The amended Regulation no longer requires Community air carriers to change their conditions of carriage; instead it seeks to apply the Montreal Convention to such carriage where the latter would not apply on its own terms. The result is that on ordinary principles of public international law the Courts of a Member State would apply Montreal, but those of a non-European state would apply Warsaw/Hague to the same carriage. Given that the availability of limited liability may be in issue this distinction could be significant during the transitional period to full implementation of Montreal.
The amendment came into force on 30 May 2002. However it does not yet "apply". That only occurs when the Montreal Convention enters into force "for the Community". The desire of Community institutions not only to add their own policy variations to an international regime but to do so by the – possibly unprecedented – means of attempting to introduce the Community as a party without an established mechanism, recognised under international law, for the Community to enter into treaty relationships either in its own right or on behalf of member states, seems likely to lead only to uncertainty. Steps are in hand for Member States to ratify the Montreal Convention simultaneously, but it appears unlikely that this will happen before the middle of next year. Apparently Italy has not yet started the process. Greece has, however, already deposited its instrument of ratification. With 24 other States also having ratified the likelihood must be that another five will do so in the next few months and the Convention will come into force for these first 30 States before it does so for 14 of the EU’s Member States.
Leaving aside the extent to which the development of the law elsewhere may be ahead of much of Europe, the situation begs the question of whether the Montreal Convention will come into force at a clear date ‘for the Community’ or merely for a group of Member States, thus not satisfying the application trigger of the amended Regulation. In any case, there would in that event be a period when Greek law would apply the normal Montreal Convention provisions to carriage to other Montreal States and then later apply a modified version to all carriage to and from Greece by Community air carriers.
These possibilities seem unlikely to be what the Commission intended or anticipated. One hopes that the Courts will apply a purposive and common sense approach to such debates rather than a pedantic one, but much could have been avoided by the modification of a few words.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.
