CJEU’s Decision in Nelson and Others in Light of the Exclusivity of the Montreal Convention

Abstract

The most recent decision by the Court of Justice of the European Union (CJEU) on passenger rights in air transport, based solely on interpreting internal European Union (EU) air law, yet again places at risk the international air law obligations of the twenty-seven EU Member States. The Montreal Convention 1999 (MC99), in its Article 29, expresses the clear intent of the drafters that the liability rules provided by the Convention, where applicable to the carriage, are exclusive of all local laws, rules and regulations that otherwise might be applied. Yet the Court purports to create alongside the undisputable and exclusive cause of action dealt with by the Montreal Convention a separate set of rules regulating the exact same matter. Providing no legal justification for doing so and without any discussion of the implications of the principle of exclusivity, the Court's decision raises serious concerns, with respect to the certainty of the internal EU legal order and with respect to international law and international relations.