OGH: Preliminary Ruling on Air Traffic Control Services

Jul 5, 2024 Benn-Ibler Rechtsanwälte

The European Court of Justice (ECJ) will soon hear a case between a plaintiff airline and the defendant Republic of Austria concerning claims for damages against the State.

The plaintiff is an airline based at Vienna International Airport and uses the air traffic control services provided by the Austrian civil aviation authority, Austro Control, for flights to and from Vienna, for which it pays fees. In August 2016, flight delays and thus a number of stranded passengers, occurred due to flight data transmission problems at Austro Control. The plaintiff was also affected by these delays.

As the defendant is liable under Section 10(1) of the Austro Control Act (ACG-Gesetz) for any damage caused by Austro Control employees in the performance of their duties in enforcing the law, the plaintiff sought damages from the Austrian federal government in excess of EUR 370,000. The defendant denied liability and argued that the Austro Control employees had not acted unlawfully or culpably. It also argued that the European regulations were intended solely to serve the public interest in safe air travel.

The court of first instance dismissed the action, while the court of appeal set aside the judgment of the court of first instance and ordered it to supplement the proceedings.

According to the established case law of the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH), even in the case of a culpable violation of legal provisions, only the damage which the violated provision was intended to prevent is to be compensated. Consequently, the protective purpose of the provision must be determined by interpretation. The OGH decided to stay the proceedings for the purpose of a preliminary ruling.

The ECJ must now clarify whether Article 8 of the Single European Sky Regulation (No. 550/2004) is to be interpreted as meaning that the provision of air traffic regulation services also serves to protect individual airspace users against the occurrence of purely pecuniary damage caused by unlawful and culpable omissions on the part of air traffic regulation service providers entrusted with the provision of air traffic regulation services.

OGH 1 Ob 118/23v (27 May 2024)