International Journal of Tourism, Travel and Hospitality Law 2023

INTERNATIONAL JOURNAL OF TOURISM, TRAVEL AND HOSPITALITY LAW where the air carrier concerned has not failed to fulfil its diligence and safety obligations in that regard. Although one can agree with the CJEU that a breach of the air carrier’s duty of care is not relevant32 because liability does not depend on any misconduct or negligence on the part of the air carrier, but it is sufficient if the accident occurs on board the aircraft or during boarding or disembarking33 – but it does not follow from this in itself that a fall ‘for no ascertainable reason’ would also have to be subsumed under the term ‘accident’, as the CJEU does and thus ignores the restriction proposed by the AG. 6. CRITICISM There is no comprehensible reasoning in the CJEU ruling as to why, contrary to established international case law, the CJEU does not apply the criterion of an external event (or, in the words of the AG, an event ‘triggered by some unexpected or unusual factor that is external to the passenger’) when interpreting the concept of an accident. The CJEU does not even discuss the convincing arguments of the AG, but is content with a reference to its own judgment Niki Luftfahrt and the interpretation of the concept of accident advocated there – where, however, (as already noted) the ‘externality criterion’34 did not play a role because the injury there was undoubtedly caused by an external event. However, this is completely different in the case of a fall on a passenger staircase ‘for no ascertainable reason’, because such a fall can have a multitude of causes that lie solely in the passenger himself, such as in particular neurological causes, cardiovascular causes, orthopaedic causes, metabolic disorders, and so on. If the specific reason for the fall remains not ascertainable, such intrinsic causes can no more be excluded than extrinsic causes. However, the wording of Art 17 para 1 MC35 indicates that the burden of proof for a damage-causing accident on board an aircraft or during boarding or disembarking rests with the passenger, which has also been completely undisputed in case law up to now. A 32 Ibid., margin 22. 33 Ibid., margin 23. 34 AG CJEU, opinion of 20.01.2022 in case C-589/20 – JR v. Austrian Airlines, margin 53. 35 ‘… upon condition only …‘.