CELEX: 62016CJ0340
Reference for a preliminary ruling
Judicial cooperation in civil matters
Regulation (EC) No 44/2001
Article 9(1)
Article 11(2)
Jurisdiction in matters relating to insurance
Direct action by the injured party against the insurer
Action brought by the employer, a public-law institution, statutory assignee of the rights of its employee, against the insurer of the vehicle involved
Subrogation)

This request for a preliminary ruling concerns the interpretation of Article 9(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (
OJ 2001 L 12, p. 1
), read in conjunction with Article 11(2) thereof.
The request has been made in proceedings between the Landeskrankenanstalten-Betriebsgesellschaft — KABEG (‘KABEG’), a public-law establishment with its registered office in Klagenfurt am Wörthersee (Austria) which runs private hospitals, against the Mutuelles du Mans Assurances — MMA IARD SA (‘MMA IARD’), an insurance company established in France, concerning the claim for compensation brought by KABEG for continuing to pay the salary of one of its employees during a temporary incapacity to work following a road traffic accident which occurred in Italy involving that employee and a motor vehicle covered by civil liability insurance with MMA IARD.
Legal context
EU law
Regulation No 44/2001
Recitals 11 to 13 of Regulation No 44/2001 were worded as follows:
‘(11)
The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject matter of the litigation or the autonomy of the parties warrants a different linking factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.
(12)
In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close link between the court and the action or in order to facilitate the sound administration of justice.
(13)
In relation to insurance, consumer and employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules.’
The rules on jurisdiction laid down by Regulation No 44/2001 are set out in Chapter II thereof, consisting of Articles 2 to 31.
Article 2(1) of Regulation No 44/2001, in Section 1 of Chapter II, entitled ‘General provisions’, read as follows:
‘Subject to the provisions of this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.’
Article 3(1) of Chapter 2 of that regulation, also in Section 1, provided:
‘Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter.’
Section 3 of Chapter 2 of that regulation was entitled ‘Jurisdiction in matters relating to insurance’. It consisted of Articles 8 to 14 of Regulation No 44/2001.
Article 8 of that regulation provides:
‘In matters relating to insurance, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point 5 of Article 5.’
Article 9(1) of that regulation provided:
‘An insurer domiciled in a Member State may be sued:
(a)
in the courts of the Member State where he is domiciled, or
(b)
in another Member State, in the case of actions brought by the policyholder, the insured or a beneficiary, in the courts for the place where the plaintiff is domiciled …
…’
Article 10 of Regulation No 44/2001 was worded as follows:
‘In respect of liability insurance or insurance of immovable property, the insurer may in addition be sued in the courts for the place where the harmful event occurred. The same applies if movable and immovable property are covered by the same insurance policy and both are adversely affected by the same contingency.’
Article 11(2) of Regulation No 44/2001 provided:
‘Articles 8, 9 and 10 shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted.’
Regulation No 44/2001 was repealed by Article 80 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (
OJ 2012 L 351, p. 1
). However, pursuant to Article 81, second paragraph, of the latter regulation it is applicable only from 10 January 2015.
Directive 2009/103/EC
Under the heading ‘Compulsory insurance of vehicles’, Article 3 of Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability (
OJ 2009 L 263, p. 11
) states:
‘Each Member State shall, subject to Article 5, take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance.
The extent of the liability covered and the terms and conditions of the cover shall be determined on the basis of the measures referred to in the first paragraph.
Each Member State shall take all appropriate measures to ensure that the contract of insurance also covers:
(a)
according to the law in force in other Member States, any loss or injury which is caused in the territory of those States;
(b)
any loss or injury suffered by nationals of Member States during a direct journey between two territories in which the Treaty is in force, if there is no national insurers’ bureau responsible for the territory which is being crossed; in such a case, the loss or injury shall be covered in accordance with the national laws on compulsory insurance in force in the Member State in whose territory the vehicle is normally based.
The insurance referred to in the first paragraph shall cover compulsorily both damage to property and personal injuries.’
Under Article 18 of that directive, entitled ‘Direct right of action’:
‘Member States shall ensure that any party injured as a result of an accident caused by a vehicle covered by insurance as referred to in Article 3 enjoys a direct right of action against the insurance undertaking covering the person responsible against civil liability.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
On 26 March 2011, a road traffic accident occurred in Italy, involving a cyclist domiciled in Austria who is an employee of KABEG and the driver of a car covered by civil liability insurance provided by MMA IARD. The employee suffered various injuries as a result of that accident.
KABEG brought an action before the Landesgericht Klagenfurt (Regional Court, Klagenfurt, Austria) seeking an order that MMA IARD pay damages of EUR 15505.64 plus interest and costs. KABEG explained that it had continued to pay the salary of the employee injured in the road traffic accident while he was on sick leave after that accident. On that basis, the employee’s financial entitlement to that sum passed to KABEG.
KABEG takes the view that the Landesgericht Klagenfurt (Regional Court, Klagenfurt) has international jurisdiction based on Article 9(1)(b) of Regulation No 44/2001, read in conjunction with Article 11(2) thereof. Furthermore, it claims that the action brought in parallel by its employee is pending before the same court, which has already accepted jurisdiction.
MMA IARD raised a plea of lack of jurisdiction, arguing that Section 3 of Chapter 2 of that regulation establishes a specific system for the resolution of conflicts of jurisdiction in matters relating to insurance. According to recital 13 thereof, the special rules of jurisdiction laid down by that section aim to protect the weaker party. KABEG, as the employer, cannot rely on such protection.
The Landesgericht Klagenfurt (Regional Court, Klagenfurt) dismissed that plea of lack of jurisdiction on the ground that KABEG, which merely asserts a claim derived from its employee, may rely on Article 9(1)(b) of Regulation No 44/2001, read together with Article 11(2) thereof, since such a legal person is, irrespective of its size, the weaker party in a dispute with an insurance company.
MMA IARD appealed against that decision before the Oberlandesgericht Graz (Higher Regional Court, Graz, Austria) which upheld the plea of lack of jurisdiction, varied the decision and dismissed the appeal. That court observed, inter alia, that the reference in Article 11(2) of that regulation to Article 9(1)(b) gives the injured party, whether a natural or legal person, the right to sue the insurer before the competent court of the Member State in which it is domiciled or is established. Furthermore, the concept of ‘injured party’ includes both parties which are directly injured and those indirectly injured.
However, according to that court, not all injured parties enjoy such a right. In that connection, in order to determine whether an injured party is entitled to rely on that right, it must be ascertained whether that injured party is ‘economically weaker and less experienced in legal matters’ than a civil-liability insurer. That is not the case as regards a public law institution running five hospitals, such as KABEG.
KABEG brought an appeal on a point of law before the Oberster Gerichtshof (Supreme Court, Austria), relying on Article 9(1)(b) of Regulation No 44/2001, read in conjunction with Article 11(2) thereof.
First, according to the referring court, the question arises as to whether, in a case in which the plaintiff is regarded as not needing protection, its action may be classified as ‘matters relating to insurance’ within the meaning of Article 8 of that regulation.
Second the referring court asks about the criteria for establishing the position of inferiority of the statutory assignee of the rights of an injured party vis-à-vis a professional civil-liability insurer.
In those circumstances, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer to the Court the following questions for a preliminary ruling:
‘(1)
Is the action brought by an employer established in Austria seeking compensation for the damage passed on to that employer as a result of the continued payment of remuneration to its employee domiciled in Austria a “matter relating to insurance” within the meaning of Article 8 of Regulation No 44/2001, in the case where:
(a)
the employee was injured in a road traffic accident in a Member State (Italy),
(b)
the action is brought against the civil-liability insurer, domiciled in another Member State (France), of the vehicle at fault, and
(c)
the employer is established as a public-law institution with legal personality?
(2)
If the first question is to be answered in the negative:
Should Article 9(1)(b), in conjunction with Article 11(2), of Regulation No 44/2001 be interpreted as meaning that the employer which has continued to pay remuneration can, as an “injured party”, sue the civil-liability insurer of the vehicle at fault in the courts for the place where the employer is domiciled, in so far as such a direct action is permitted?’
Consideration of the questions referred
By its questions, which it is appropriate to examine together, the referring court asks essentially whether Article 9(1)(b) of Regulation No 44/2001, read in conjunction with Article 11(2) thereof, must be interpreted as meaning that an employer established in one Member State, which continued to pay the salary of its employee absent from work following a road accident, to which have been passed the employee’s rights vis-à-vis the company insuring the civil liability of the vehicle involved in that accident which is established in a second Member State, may, as the ‘injured party’ within the meaning of the latter provision, sue the insurance company before the courts of the first Member State where a direct action is permitted.
In that connection, it must be recalled that Section 3 of Chapter 2 of that regulation establishes an autonomous system for the conferral of jurisdiction in matters of insurance (judgment of 12 May 2005, Société financière et industrielle de Peloux,
C‑112/03
,
EU:C:2005:280
, paragraph
).
In the same way as matters relating to workers and consumers, and as is clear from recital 13 of Regulation No 44/2001, a matter relating to insurance is characterised by a certain imbalance between the parties (see, to that effect, judgment of 26 May 2005, GIE Réunion européenne and Others,
C‑77/04
,
EU:C:2005:327
, paragraph
) that the provisions of that section aim to correct by enabling the weaker party to benefit from rules of jurisdiction more favourable to his interests than the general rules provide for (see, to that effect, judgment of 17 September 2009, Vorarlberger Gebietskrankenkasse,
C‑347/08
,
EU:C:2009:561
, paragraph
).
The questions of the referring court as to the classification of an employer, which is the statutory assignee of the injured party’s rights, as the ‘weaker party’ arise from the finding made by the Court that a social security institution, which is the statutory assignee of the rights of the person directly injured in a car accident cannot be classified as such, whereas a person to whom the rights of the person directly injured have passed, such as an heir, may be (see, to that effect, judgment of 17 September 2009, Vorarlberger Gebietskrankenkasse,
C‑347/08
,
EU:C:2009:561
, paragraphs
and
).
In that connection, the referring court explains that, in circumstances such as those at issue in the main proceedings, the possibility for an employer to which have passed the rights of its employee to sue the civil liability insurer of the person responsible for the injury before the courts of the Member State in which the employer is established would ensure consistency between the rules of jurisdiction and, therefore, their predictability and a proper administration of justice.
Therefore, it the present case, it is necessary to examine whether employers to which the rights of the person directly injured have been transmitted are covered by the concept of ‘injured party’ within the meaning of Article 11(2) of Regulation No 44/2001.
As the Advocate General observed, in point 47 of his Opinion, the notion of the ‘weaker party’ has a wider acceptance in matters relating to insurance than those relating to consumer contracts or individual employment contracts.
It should also be recalled that the Court has held that the purpose of the reference in Article 11(2) of Regulation No 44/2001 is to add injured parties to the list of plaintiffs contained in Article 9(1)(b) of that regulation, without restricting the category of persons having suffered damage to those suffering it directly (judgments of 13 December 2007, FBTO Schadeverzekeringen,
C‑463/06
,
EU:C:2007:792
, paragraph
, and of 17 September 2009, Vorarlberger Gebietskrankenkasse,
C‑347/08
,
EU:C:2009:561
, paragraph
).
Furthermore, as the referring court observed in its order for reference, a case-by-case assessment of the question whether an employer which continues to pay the salary may be regarded as the economically weaker party in order to be covered by the definition of ‘injured party’ within the meaning of Article 11(2) of Regulation No 44/2001, would give rise to the risk of legal uncertainty and would be contrary to the objective of that regulation, laid down in recital 11 thereof, according to which the rules of jurisdiction must be highly predictable.
Therefore, it must be held that, pursuant to Article 11(2) of Regulation No 44/2001, employers to which the rights of their employees to compensation have passed may, as persons which have suffered damage and whatever their size and legal form, rely on the rules of special jurisdiction laid down in Articles 8 to 10 of that regulation.
Thus, the employer to which the rights of its employee have passed in order to be reimbursed for the salary paid to the latter during a period of incapacity to work, which, solely in that capacity, has brought an action for damages may be regarded as weaker than the insurer that it sues and, therefore, is able to benefit from the possibility to bring that action before the courts of the Member State in which it is established.
It follows that an employer to which the rights of the employee injured in a road traffic accident have passed and for whom it continued to pay his salary may, as the ‘injured party’, sue the insurer of the vehicle involved in that accident before the courts of the Member State in which the employer is established where a direct action is permitted.
In the latter connection, it must be observed that, by virtue of Article 18 of Directive 2009/103, it is for the Member States to ensure that any party injured as a result of an accident caused by a vehicle covered by civil liability insurance enjoys a direct right of action against the insurance undertaking covering the person responsible against civil liability.
It follows from all of the foregoing that Article 9(1)(b) of Regulation No 44/2001, read together with Article 11(2) thereof, must be interpreted as meaning that an employer, established in one Member State, which continued to pay the salary of its employee absent as the result of a road traffic accident and to which have passed the employee’s rights with regard to the company insuring the civil liability resulting from the vehicle involved in that accident, which is established in a second Member State, may, in the capacity of ‘injured party’, within the meaning of Article 11(2), sue the insurance company before the courts of the first Member State, where a direct action is permitted.
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 (Third Chamber) hereby rules:

Article 9(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, read together with Article 11(2) thereof, must be interpreted as meaning that an employer, established in one Member State, which continued to pay the salary of its employee absent as the result of a road traffic accident and to which have passed the employee’s rights with regard to the company insuring the civil liability resulting from the vehicle involved in that accident, which is established in a second Member State, may, in the capacity of ‘injured party’, within the meaning of Article 11(2), sue the insurance company before the courts of the first Member State, where a direct action is permitted.

[Signatures]
(
*1
)	Language of the case: German.