CELEX: 62015CJ0005
Reference for a preliminary ruling
Legal expenses insurance
Directive 87/344/EEC
Article 4(1)
Free choice of lawyer for an insured person
Inquiry or proceedings
Definition
Objection to refusal of authorisation for care

This reference for a preliminary ruling concerns the interpretation of Article 4(1) of Council Directive 87/344/EEC of 22 June 1987 on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance (
OJ 1987 L 185, p. 77
, ‘the Directive’ or ‘Directive 87/344’).
The request has been made in proceedings between AK and Achmea Schadeverzekeringen NV and Stichting Achmea Rechtsbijstand (together, ‘the Achmea companies’) concerning the refusal to bear the lawyer’s fees incurred in objection proceedings before a public body regarding a request for authorisation of special medical care.
Legal context
EU law
The 11th recital of Directive 87/344 states that:
‘Whereas the interest of persons having legal expenses cover means that the insured person must be able to choose a lawyer or other person appropriately qualified according to national law in any inquiry or proceedings and whenever a conflict of interests arises’.
According to Article 2(1) of that directive:
‘This Directive shall apply to legal expenses insurance. Such consists in undertaking, against the payment of a premium, to bear the costs of legal proceedings and to provide other services directly linked to insurance cover, in particular with a view to:
–
securing compensation for the loss, damage or injury suffered by the insured person, by settlement out of court or through civil or criminal proceedings,
–
defending or representing the insured person in civil, criminal, administrative or other proceedings or in respect of any claim made against him.’
Article 3(2) of that directive is worded as follows:
‘Each Member State shall take the necessary measures to ensure that the undertakings established within its territory adopt, in accordance with the option imposed by the Member State, or at their own choice, if the Member State so agrees, at least one of the following solutions, which are alternatives:
(a)
the undertaking shall ensure that no member of the staff who is concerned with the management of legal expenses claims or with legal advice in respect thereof carries on at the same time a similar activity
…
(b)
the undertaking shall entrust the management of claims in respect of legal expenses insurance to an undertaking having separate legal personality. …
(c)
the undertaking shall, in the contract, afford the insured person the right to entrust the defence of his interests, from the moment that he has the right to claim from his insurer under the policy, to a lawyer of his choice or, to the extent that national law so permits, any other appropriately qualified person.’
Article 4(1) of the Directive provides:
‘Any contract of legal expenses insurance shall expressly recognise that:
(a)
where recourse is had to a lawyer or other person appropriately qualified according to national law in order to defend, represent or serve the interests of the insured person in any inquiry or proceedings, that insured person shall be free to choose such lawyer or other person;
(b)
the insured person shall be free to choose a lawyer or, if he so prefers and to the extent that national law so permits, any other appropriately qualified person, to serve his interests whenever a conflict of interests arises.’
Netherlands law
Article 4:67, paragraph 1, of the Law on financial supervision (Wet op het financieel toezicht) is worded as follows:
‘A legal expenses insurer shall ensure that, in the contract for legal assistance cover, it is expressly provided that the insured person is free to choose a lawyer or other practitioner authorised by law where:
a.
recourse is had to a lawyer or other practitioner authorised by law in order to defend, represent or serve the interests of the insured person in any inquiry or proceedings of a judicial or administrative nature; or
b.
a conflict of interests arises.’
The dispute in the main proceedings and the question referred
It is apparent from the order for reference that AK had taken out legal expenses insurance with Achmea Schadeverzekeringen NV, which entrusted the management of settling claims under that insurance to Stichting Achmea Rechtsbijstand.
AK, suffering from various mental and physical disorders, in November 2013 asked the Care Assessment Centre (Centrum Indicatiestelling Zorg, ‘CIZ’) to authorise care under the General Law on Exceptional Medical Expenses (Algemene wet bijzondere ziektekosten ‘AWBZ’).
By decision of 12 December 2013, the CIZ refused AK’s request for authorisation of care. Having decided to lodge an objection to that refusal before the CIZ, AK approached the Achmea companies requesting that they bear the costs arising from the involvement of a lawyer of his choice, specialised in cases of the authorisation of care under the abovementioned law.
The Achmea companies having refused his request that they pay those costs, AK brought an action against that refusal.
The case was brought before the Gerechtshof Amsterdam (Court of Appeal, Amsterdam) for determination of the question whether the claim against the CIZ’s decision refusing authorisation for care must be classified as an ‘inquiry or proceedings of a judicial or administrative nature’ within the meaning of Article 4:67, paragraph 1, of the Law on financial supervision, which transposes Article 4(1) of Directive 87/344, and whether, therefore, AK is free to choose a lawyer whose fees are to be borne by the Achmea companies.
In that regard, the referring court makes it clear that an objection may be lodged with the CIZ against a decision taken by the latter rejecting a request for authorisation of care and that the decision on such an objection may be the subject of an action before the court having jurisdiction and an appeal before the Centrale Raad van Beroep (Court of Appeal in matters relating to social security and the civil service).
It was in those circumstances that the Gerechtshof Amsterdam (Court of Appeal, Amsterdam) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Must the term “inquiry or proceedings” in Article 4(1)(a) of Directive 87/344 be interpreted as also covering the objection stage before the CIZ, in which any person who has received a negative decision from the CIZ on a request for an assessment may lodge a notice of objection with the CIZ requesting that the decision be reviewed?’
The question referred
By its question, the referring court asks, in essence, whether Article 4(1)(a) of Directive 87/344 must be interpreted as meaning that the term ‘inquiry’ appearing in that provision includes the stage of objection before a public body during which that body gives a decision against which an action may be brought before the courts.
In that regard, it is to be noted, in the first place, that under Article 4(1)(a) of Directive 87/344 any contract of legal expenses insurance is expressly to recognise that, in any inquiry or proceedings, where recourse is had to a representative to defend, represent or serve the interests of the insured person, the latter is to be free to choose that representative.
Thus, it follows from the very wording of that provision that the term ‘inquiry’ must be read in opposition to the term ‘proceedings’.
An interpretation of the term ‘inquiry’, within the meaning of Article 4(1)(a) of Directive 87/344, in the manner suggested by the defendants in the main proceedings, that seeks to limit the scope of that term to legal proceedings in administrative matters only, that is to say, those that take place before a court in the strict sense, seek review of the lawfulness of the contested decision and determine definitively the legal position of the person concerned, would deprive the term ‘inquiry’, expressly used by the legislature of the European Union, of its meaning.
Furthermore, it must be observed that, even if the difference between the preparatory stage and the decision-making stage in an inquiry or proceedings could have been the subject of debate during the legislative history of Directive 87/344, the text of Article 4(1) of that directive does not contain any such distinction, with the result that the interpretation of the term ‘inquiry’ may not be limited in that way.
In the second place, according to settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also its context and the objectives pursued by the rules of which it forms part (see, to that effect, judgments in St. Nikolaus Brennerei und Likörfabrik,
337/82
,
EU:C:1984:69
, paragraph
; VEMW and Others,
C‑17/03
,
EU:C:2005:362
, paragraph
; and Eschig,
C‑199/08
,
EU:C:2009:538
, paragraph
).
In that regard, it is to be noted that the objective pursued by Directive 87/344, in particular Article 4 thereof, concerning the free choice of lawyer or representative, is to protect, broadly, the interests of insured persons. The general scope and obligatory nature that the right of the insured party to choose his lawyer or representative is recognised to possess militate against a restrictive interpretation of Article 4(1)(a) of that directive (see, to that effect, judgments in Eschig,
C‑199/08
,
EU:C:2009:538
, paragraphs
and
, and Sneller,
C‑442/12
,
EU:C:2013:717
, paragraph
).
In the present case, it is apparent from the documents in the case file submitted to the Court that the rights of the insured person are affected both by the initial decision of the CIZ and by the decision taken in response to an objection, inasmuch as the factual assessment is made during that administrative stage and that assessment constitutes the basis of the decision made in the context of subsequent judicial administrative proceedings.
In those circumstances, it is indisputable that the insured person has need of legal protection during a procedure that constitutes the indispensable preliminary stage for the bringing of an action before the administrative court.
Such an interpretation cannot be called into question by the argument of the defendants in the main proceedings that a broad interpretation of the right to a free choice of lawyer or representative would transform all legal expenses insurance into insurance based on the principle of ‘covering costs’, within the meaning of Article 3(2)(c) of Directive 87/344. The Court has previously held that the measures provided for in Article 3(2)(a) and (b) of Directive 87/344 retain their scope even in the case in which an independent right for the person with legal expenses insurance freely to choose his representative is inferred from Article 4(1)(a) of that directive (see, to that effect, judgment in Eschig,
C‑199/08
,
EU:C:2009:538
, paragraph
).
Furthermore, as regards the possible financial consequences for legal expenses insurance schemes, it must be recalled that, even if such financial consequences could arise, they may not lead to a restrictive interpretation of Article 4(1)(a) of Directive 87/344. Directive 87/344 does not seek the complete harmonisation of the Member States’ legal expenses insurance contracts, and the Member States remain free, as EU law currently stands, to determine the body of rules applicable to those contracts, on condition that the principles laid down by that directive are not rendered meaningless (see, to that effect, judgment in Stark,
C‑293/10
,
EU:C:2011:355
, paragraph
). Thus, the exercise by the insured person of the right to choose his representative does not mean that, in certain cases, limitations may not be set on the costs to be borne by the insurer (see judgment in Sneller,
C‑442/12
,
EU:C:2013:717
, paragraph
).
Having regard to the foregoing considerations, the answer to the question referred is that Article 4(1)(a) of Directive 87/344 must be interpreted as meaning that the term ‘inquiry’ referred to in that provision covers the stage of an objection before a public body during which that body gives a decision against which an action may be brought before the courts.
Costs
Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Tenth Chamber) hereby rules:

Article 4(1)(a) of Council Directive 87/344/EEC of 22 June 1987 on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance must be interpreted as meaning that the term ‘inquiry’ referred to in that provision covers the stage of an objection before a public body during which that body gives a decision against which an action may be brought before the courts.

[Signatures]
(
*1
)	Language of the case: Dutch.
(
i
)	The name which appears in the introduction and in paragraphs 2 and 8 to 12 has been replaced with letters following a request for anonymisation.