EUPillar C-240/14 Eleonore Prüller-Frey v Norbert Brodnig and Axa Versicherung AG (First Chamber)

Summary

The case was referred to the CJEU in Austrian proceedings between Ms Prüller-Frey domiciled and habitually resident in Austria, and Mr Brodnig, an aircraft operator habitually residing in both Austria and Spain and his German civil liability insurer Axa in relation to compensation for current and future damage sustained by her as the result of an air accident in Spain. An insurance policy was concluded between Mr Brodnig as custodian of the autogyro and Axa for multiple-risk civil liability. It was subject to German law and it provided that German courts had jurisdiction. Subsequent to the accident, she brought an action in Austria seeking compensation for damage she suffered as a result of the accident and a declaration for joint and several liability of the defendants for any future damage attributable to the accident. The defendants argued that the Austrian court did not have jurisdiction and the applicable law to the case was Spanish law. They further argued that the right of Ms Prüller-Frey to bring a direct action against Axa was dependent on the insurance policy which was subject to German law that did not allow such a right. They alleged that Spanish law, as the law applicable to the case, did not allow it either. The parties agreed that the Montreal Convention did not apply to the facts of the case but the referring court expressed some doubts about it and asked some questions to the CJEU including the interpretation of Art 18 of Rome II and Art 67 of Brussels I. The CJEU, after noting that liability for the damage caused by an aircraft crash may be a non-contractual obligation referred to in Art 2 of Rome II, observed that Art 18 of Rome II does not constitute a conflict-of-laws rule, but merely makes it possible to bring a direct action where one of the laws to which it refers provides for such a possibility. The CJEU underlined that the applicable law of the insurance contract cannot be a bar to a direct action being brought on the basis of the applicable law of the non-contractual obligation and vice versa. The CJEU ruled that a person who has suffered damage is entitled to bring a direct action against the insurer of the person liable to provide compensation under Art 18 of Rome II, where such an action is provided for by the law applicable to the non-contractual obligation, determined in accordance with Art 4 of Rome II, regardless of the provision made by the law that the parties have chosen as the law applicable to the insurance contract. As regards the question on Brussels I, the referring court asked that if the Montreal Convention is applicable, whether Art 33 of the Montreal Convention and Art 67 of Brussels I are to be interpreted as meaning that jurisdiction to hear and rule on the claims for damages must be determined exclusively on the basis of Art 33 of the Montreal Convention. Since the CJEU found the Montreal Convention not applicable to the case before the referring court, it decided that there was no need to answer this question.