If we follow the interpretation of the CJEU in case C-589/20 pursuant to which even a passenger’s fall for no ascertainable reason constitutes an accident – how could a judge then determinate whether that reason was unusual or unexpected? The problem, however, may even go far beyond events of falls: if one completely disregards the criterion of an external event and only requires that the harmful event must have been ‘unforeseen and unintentional’, completely diferent health-impairing events occurring within the time frame of liability of the MC, such as thromboses or hearing damage due to changes in air pressure, could also have to be re-evaluated, which would turn decades of international case law 'upside down'. Apart from the concept of accident in the MC, it generally appears problematic that the CJEU, due to its exclusive competence to interpret Union Law, interprets international conventions such as the MC at its own 37 discretion, without itself having to justify serious deviations from the existing established international case law. This entails the risk of fragmentation of international law, because on the one hand the courts of the EU Member States are bound by the interpretation of the CJEU, but on the other hand the courts in the other contracting states to the Convention are not prevented from adhering to their previous established case law - which they will probably do in particular if the CJEU, as in the case at hand, does not even remotely provide a comprehensible justifcation for its divergent interpretation. In this way, the CJEU undermines the aim of these conventions, which is to create globally uniform regulations and thus international legal certainty in their area of application. It is therefore not surprising that AG Emiliou explicitly recommends to the CJEU in his recent opinion in another pending preliminary ruling on the concept of accident under the MC, that, ’since the Court is but one of many jurisdictions throughout the world that are competent to interpret the Montreal Convention, and since the uniform application of that convention in all States Parties is an aim to be pursued, it is appropriate for the Court to duly take into account, and give the required weight, to the decisions handed down by the courts of those States Parties’. 38 The CJEU in JR v. Austrian Airlines ruling thus appears to be a (potentially serious) 'accident' in the CJEU's jurisprudence. 39 Article 19 TEU. 37 AG CJEU, opinion of 12.01.2023 in case C-510/21 – DB v. Austrian Airlines, 38 margin 38. Meaning: ‘an unforeseen, harmful and involuntary event’ (CJEU, judgement of 39 19.12.2019 in case C-532/18 – Niki Luftfahrt).
RkJQdWJsaXNoZXIy MTE4NzM5Nw==