Case C‑240/14

Eleonore Prüller-Frey

v

Norbert Brodnig

and

Axa Versicherung AG

(Request for a preliminary ruling from the Landesgericht Korneuburg)

‛Reference for a preliminary ruling — Air carrier liability in the event of accidents — Action for damages — Montreal Convention — Regulation (EC) No 2027/97 — Flight operated free of charge by the owner of a property in order to show that property to a prospective purchaser — Regulation (EC) No 864/2007 — Direct action provided for by national law against the civil-liability insurer’

Summary — Judgment of the Court (First Chamber), 9 September 2015

1. Transport — Air transport — Regulation No 2027/97 — Convention for the Unification of Certain Rules for International Carriage by Air — Air carrier liability in the event of accidents — Scope — Air carriers — Meaning — Natural person not holding a valid operating licence — Not included

   (Council Regulations No 2407/92 and No 2027/97, as amended by Regulation No 889/2002, Art. 2(1)(a) to (c); Council Decision 2001/539; 1999 Montreal Convention, Arts 1(1) and 17)

2. Judicial cooperation in civil matters — Law applicable to non-contractual obligations — Regulation No 864/2007 — Direct action against the insurer of the person liable — Conditions of exercise — Direct action to be brought under the law applicable to the non-contractual obligation or the law applicable to the insurance contract — To be determined by the national court

   (European Parliament and Council Regulation No 864/2007, Arts 4 and 18)

1.  Article 2(1)(a) and (c) of Regulation No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air, as amended by Regulation No 889/2002, and Article 1(1) of the Convention for the Unification of Certain Rules for International Carriage by Air, concluded in Montreal on 28 May 1999 and approved on behalf of the European Union by Decision 2001/539, must be interpreted as meaning that they preclude a determination on the basis of Article 17 of that Convention of a claim for damages brought by a person who — whilst she (i) was a passenger in an aircraft that had the same place of take-off and landing in a Member State and (ii) was being carried free of charge for the purpose of viewing from the air a property in connection with a property transaction planned with the pilot of that aircraft — was physically injured when the aircraft crashed.

   Regulation No 2027/97 applies only to air carriers and Community air carriers within the meaning of Article 2(1)(a) and (b), namely air carriers with a valid operating licence granted by a Member State in accordance with the provisions of Regulation 2407/92 on licensing of air carriers.

   (see paras 29, 35, operative part 1)

2.  Article 18 of Regulation No 864/2007 on the law applicable to non-contractual obligations (Rome II) must be interpreted as meaning that a person who has suffered damage as the result of an aircraft crash is entitled to bring a direct action against the insurer of the person liable to provide compensation, where such an action is provided for by the law applicable to the non-contractual obligation, regardless of the provision made by the law that the parties have chosen as the law applicable to the insurance contract.

   Article 18 of that regulation does not constitute a conflict-of-laws rule with regard to the substantive law applicable to the determination of the liability of the insurer or the person insured under an insurance contract. That article merely makes it possible to bring a direct action where one of the laws to which it refers provides for such a possibility. The right of the person who has suffered damage to bring a claim directly against the insurer of the person liable to provide compensation does not affect the contractual obligations of the parties to the insurance contract concerned. Similarly, the choice, made by those parties, of the law applicable to that contract does not affect the right of the person who has suffered damage to bring a direct action in accordance with the law applicable to the non-contractual obligation. Consequently, in order to determine whether the person injured may bring a claim directly against the insurer, it is for the national court to ascertain whether the law applicable to the non-contractual obligation, determined in accordance with Article 4 of Regulation No 864/2007, or the law applicable to the insurance contract entered into between the parties permits such a claim to be brought.

   (see paras 40-43, 45, operative part 2)