This was a decision to refer an issue to the Court of Justice of the European Union (CJEU) for a preliminary hearing, arising from joined cassation appeals in respect of personal injuries suffered by passengers on Costa Crocière SpA (Costa) cruises.

The issue was whether Costa's liability should be determined under the Athens Convention 2002 [which is given effect in the EU by Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents and its Annex I], or whether it was subject to the European Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours, and thus arts L 211-1 ff of the French Tourism Code, resulting from the transposition of Directive 90/314 into French law. Costa maintained that this latter Directive applied in the event of death or personal injury to passenger to all maritime cruises which had the characteristics of a tourist package within the meaning of the Directive. It argued that the Athens Convention 2002 did not apply to tourist package cruises within the EU.

Held: The following question should be referred to the CJEU:

1) Must arts 2, 3(1) and 7 of Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents and its Annex I [ie the Athens Convention 2002] be interpreted as meaning that they govern the liability of a maritime carrier or operator of a cruise which has the characteristics of a tourist package within the meaning of European Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours?

2) If the first question is answered in the affirmative, do these provisions of the Regulation govern the liability of such operators only when the personal injury [etc] is linked to transport by sea?

The Court of Cassation has ruled that organisers of cruises that display the characteristics of a tourist package, within the meaning of art L 211-2 of the Tourist Code; ie companies which organise not only the transport of passengers but all of the operations making up the cruise, including all of the additional tourist services offered in this capacity, are deemed legally responsible for the proper performance of the obligations resulting from the contract concluded by the buyer of a tourist package (1st Civ, 9 December 2015, Pourvoi n° 14-20.533, Bull 2015, I, no 318).

The CJEU has not yet ruled on the question of the application of Regulation 392/2009 [ie the Athens Convention 2002] to organisers of sea cruises which have the characteristics of a tourist package. The Court of Cassation has not had to rule on the application of this Regulation to the organisers of maritime cruises presenting such characteristics.

The lower courts are divided. The Versailles Court of Appeal held that Directive 90/314 applies to maritime cruises and aims to guarantee better protection to the consumer throughout the territory of the European Union. The Paris Court of Appeal, on the contrary, held that the relevant voyage fell within the scope of Regulation 392/2009 [ie the Athens Convention 2002] which does not exclude any maritime voyages or cruises and, moreover, that art 7 of the Regulation contains an explicit reference to Directive 90/314.

Likewise, French doctrine is divided. Some authors consider that the liability of the cruise organiser necessarily falls under the provisions of the Tourism Code. Other authors note that art 14 of the Athens Convention, to which art 3 of Regulation 392/2009 refers, provides that no action for liability in the event of death or personal injury of the passenger, or loss of or damage to baggage, can be brought against the contractual or actual carrier, other than on the basis of that Convention, and that no provision of the Regulation has excluded tourist cruises from its scope of application. Finally, according to certain authors, it is appropriate to distinguish whether the accident suffered by the passenger taking a cruise is linked to the transport operation itself, in which case the carrier's liability would fall under the Athens Convention, or to a tourist service provided during this transport falling within the scope of Directive 90/314.

Since the interpretation of Regulation 392/2009, on which the answer to these questions depends, is not so obvious that it leaves no room for reasonable doubt, it is necessary, in accordance with art 267 of the Treaty on the Functioning of the European Union (TFEU), to refer the questions set out in the operative part to the CJEU for a preliminary ruling.