Reference to ECJ was made in the course of proceedings brought by Ms Bogiatzi against Société Luxair, société luxembourgeoise de navigation aérienne SA (‘Luxair’), and Deutscher Luftpool, an association under German law, concerning joint and several liability to compensate her for the injury she suffered as a result of an accident which occurred while boarding a Luxair aeroplaneon 21 Dec. 1998.On 22 December 2003, Ms Bogiatzi brought proceedings for damages against Deutscher Luftpool – an association of aviation insurers which is governed by German civil law – and Luxair before the tribunal d’arrondissement de Luxembourg (District Court, Luxembourg), relying on Regulation No 2027/97 and the Warsaw Convention. Ms Bogiatzi’s claim, brought five years after the events at issue took place, was held inadmissible. The court held that the two-year limitation period provided for in Article 29 of the Warsaw Convention for bringing actions for damages is predetermined and may not be suspended or interrupted. The inadmissibility of the claim was confirmed on appeal. Ms Bogiatzi then appealed on a point of law to the Cour de cassation (Court of Cassation) which decided to stay proceedings and file a reference for preliminary ruling to the ECJ.In its judgement of 22 October 2009 ECJ rejected jurisdiction for the following reasons:Pursuant to Article 234 EC, the Court has jurisdiction to give preliminary rulings concerning the interpretation of the EC Treaty and on the validity and interpretation of acts of the institutions of the Community. According to settled case-law, an agreement concluded by the Council, in accordance with Articles 300 EC and 310 EC, is, as far as the Community is concerned, an act of one of the institutions of the Community, within the meaning of subparagraph (b) of the first paragraph of Article 234 EC. The provisions of such an agreement form an integral part of the Community legal order as from its entry into force and, within the framework of that order, the Court has jurisdiction to give preliminary rulings concerning the interpretation of such an agreement. However, as the Community is not a contracting party to the Warsaw Convention the Court does not, in principle, have jurisdiction to interpret the provisions of that convention in preliminary ruling proceedings.Even though the Court has jurisdiction to interpret an international convention which has not been ratified by the Community where and in so far as, pursuant to the Treaty, the Community has assumed the powers previously exercised by the Member States in the field to which such convention applies, in absence of a full transfer of the powers previously exercised by the Member States to the Community, the latter cannot, simply because at the material time all those States were parties to the Warsaw Convention, be bound by the rules set out therein, which it has not itself approved.The Warsaw Convention therefore does not form part of the rules of the Community legal order which the Court of Justice has jurisdiction to interpret under Article 234 EC.Regulation No 2027/97 must be interpreted as not precluding the application of Article 29 of the Warsaw Convention to a situation in which a passenger seeks to establish the liability of the air carrier on account of harm suffered by him when flying between Member States of the Community.Full text of judgement C‑301/08 of Oct. 22, 2009 available here>>.
