Last week the CJEU issued a judgment in the Vueling Airlines case (C-86/19) deciding on the liability of air carriers for lost or damaged checked in baggage. As a reminder to our readers, this area of air passenger rights is not regulated in Regulation No 261/2004, but rather in the Montreal Convention.
The checked in luggage of the passenger in the given case never arrived at the final destination, which led the passenger to claim the maximum amount of compensation provided in Article 22(2) of the Montreal Convention - 1131 of Special Drawing Rights (SDR) (which would currently amount to ca 1376 Euro) - to compensate them for both material and non-material damages. The air carrier acknowledges its liability but wants to limit its compensation to the passenger to EUR 250 for all suffered by passenger losses. The passenger did not indicate the contents of the baggage, its value or weight, nor provided receipts for items bought to replace the lost items. Instead the passenger relies on the fact that loss of baggage is the most serious ground for liability of air carrier in Article 22(2) Montreal Convention and, therefore, should be awarded by the maximum amount of compensation provided in it. The referring courts indicates the different practice of national courts in awarding compensation in such cases: some courts require evidence as to specific passenger losses, others do not. Therefore, the CJEU is asked for its guidance.
The CJEU confirms first that Articles 17(2) and 22(2) Montreal Convention read jointly indicate that the amount of compensation for the lost baggage is not a fixed sum payable automatically to the passenger, but rather indicates the maximum amount of compensation that the air carrier needs to be prepared to pay when they are liable (para 35). This is not a surprising interpretation, as the previous case law on the Convention was also clear in indicating that these provisions aim to set absolute limits to the air carrier's liability, absent passengers indicating separately and explicitly a higher value of their checked in luggage, rather than regulate it on a fixed level (see e.g. our previous comment on Walz judgment).
The second question was more interesting: How are national courts to determine the amount of payable compensation? The answer to it is not surprising either, however, but rather deeply rooted in the limitations of the EU Law in relation to procedural matters. The CJEU is only able to indicate that the Montreal Convention leaves it to the national rules of evidence to determine how passengers are to prove the suffered losses, with the caveat that the national procedural rules must comply with the principles of effectiveness and equivalence (para 44). Already in the previous case - Espada Sanchez and Others (see our previous comment here) - the CJEU has confirmed that the burden of proof as to the value of the baggage is on the passenger (para 37). The CJEU mentions that the passengers could e.g. be asked to present receipts for items purchased to replace lost luggage, documents confirming the harms suffered as the result of the loss (para 41). When the passenger does not produce any such documents, the courts could consider the weight of the luggage, whether it was lost on an outbound or return journey, but any such assessments need to be made in consideration of the case as a whole (para 42). As it is the air carrier who is likely to have the record of the weight of the luggage, the national court may require them to help with providing evidence thereof (para 43).
