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About lost suitcases and delayed trains

Every traveler knows it: lost luggage, flight or train cancellations, long waiting times – the list of potential annoyances is almost endless. While the only thing that matters to the traveler is getting back the urgently needed piece of luggage or arriving safely at the destination, such incidents often lead to disputes between the transporting companies, especially in the international transport of passengers and goods. The legal situation is complex and characterized by the coexistence of international, Union and national rules. The Supreme Court of Justice recently referred a question to the ECJ regarding this issue.

What is the legal situation?

International agreements have become increasingly prevalent in recent decades, especially for cross-border transports. These mandatory regulations supersede the validity of the relevant provisions of the national regulations. The Convention concerning International Carriage by Rail (COTIF) also has such an effect. As a result, transport law contracts in rail traffic often contain a reference to the liability provisions of the COTIF or its appendices.

Preliminary ruling proceedings before the ECJ

In order to reconcile the provisions of international railroad law with those of Union law, the Supreme Court has submitted a number of questions for a preliminary ruling to the ECJ. In particular, they concern whether the ECJ is competent to interpret the “Uniform Rules concerning the Contract of Use of Infrastructure in International Rail Traffic” (CUI; Appendix E COTIF) without this having been explicitly ordered by EU secondary legislation. In addition, the Supreme Court of Justice would like to know from the ECJ whether the liability rules of the international agreements can be extended by means of a blanket reference to national law.


Since the EU acceded to COTIF in 2011, EU Member States that are also members of the “Intergovernmental Organization for International Carriage by Rail” (OTIF) are subject to EU law instead of OTIF law. This results from the disconnection clause in Art 2 of the 2011 OTIF/EU agreement. If there is a conflict between EU law and obligations arising from the OTIF provisions, EU law takes precedence.

Whether the ECJ is now competent to interpret the CUI depends in particular on the extent to which the EU has exclusive competence with regard to the present provisions of COTIF. In previous proceedings, the ECJ had already interpreted the “Uniform Rules concerning the Contract of International Carriage of Passengers by Rail” (CIV; Appendix A to COTIF). However, it has to be taken into account that the application of the CIV in the Union was ordered by an EU regulation and is therefore a legal act of the Union. However, this does not apply to the CUI.

Admissibility of blanket references to liability provisions

In order to answer the question of the admissibility of a blanket reference to national law, an interpretation of Art 4 CUI is necessary. This article allows an extension of liability. However, it is questionable whether a blanket reference to the Austrian liability rules of the ABGB, UGB and EKHG can be seen as an “extension” within the meaning of Art 4.

It remains to be seen how the ECJ will deal with these questions of interpretation. In any case, the decision will be of great importance for the future design of contracts in international transport law.

Our experts Johannes Hartlieb and Christoph Juricek from the Regulatory Law team will be happy to answer any further questions you may have on this topic.


This article provides only general information and does not replace legal advice. Haslinger / Nagele Rechtsanwälte GmbH assumes no liability for the content and correctness of this contribution.


30. November 2021

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