Opinion of the Advocate General — ECLI:EU:C:2018:290
Date: 2018-04-26
Language of the case: Portuguese
Subject matter: Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Portugal

summary 47. On the basis of the above cases, the basic working definition of ‘use of vehicles’ is at first sight rather broad, covering uses consistent with normal use (as a means of transport) (Vnuk), irrespective of the specific place it is being used (Torreiro), but excluding cases where the principal use at the time of the accident is something other than as a means of transport (Andrade). 48. In the following section I will consider the relationship between the ‘use of vehicles’ and the obligation to insure and the point in time at which each of those can and should be identifiable. 3. ‘Use of vehicles’ and obligation to insure: ex ante or ex post? 49. Pursuant to Article 3(1) of Directive 72/166, the obligation to insure extends to ‘civil liability in respect of the use of vehicles’. 50. The definition of ‘use of vehicles’ in Vnuk, Andrade and Torreiro was centred around the activity the vehicle was engaged in or the mode that it was in ‘at the time of the accident’: reversing with a trailer; working as a machine; driving on (in)appropriate terrain. (24) 51. It could be inferred from that, that when an accident has already happened, the existence of an obligation to insure should be assessed with reference to the specific circumstances of the accident. In other words, whether there was the obligation to insure would be assessed after the event (ex post facto). 52. Therefore, in the present case, this would mean that, since the accident occurred while the car was being driven on a public road (thus what would appear to be the normal use of the vehicle), there certainly was an obligation to have the vehicle insured at that moment. However, that does not answer the question of whether there was an obligation to insure when the vehicle was parked in Ms A. Juliana’s yard. That is the crux of the referring court’s first question and, as I understand it, key to the question of whether she can be held liable in this case. 53. Moreover, while I agree that there was undeniably an obligation to insure at the time of the accident in this case, I do not consider that the trio of judgments in Vnuk, Andrade and Torreiro should be read as generally meaning that the obligation to insure is to be assessed ex post facto. 54. It must be possible to define the notion of ‘use of vehicles’ and the scope of the obligation to insure ex ante. That is most obviously for reasons of legal certainty. Vehicles cannot drift in and out of the general obligation to insure depending on what activity they happen to be engaged in or mode they are in at a given time. The existence of the obligation cannot simply depend on reasoning in retrospect based on the circumstances of the accident. 55. In the judgments in Vnuk, Andrade and Torreiro,the Court took into account the activity of the vehicles at a given time because that was necessary for the national court to determine liability. It ought to be stressed that in all those cases the vehicles involved in the accidents were insured. (25) I understand that the fact that there was a general obligation to insure was not in dispute. The relevant question that the national courts had to resolve in those cases was rather whether the accidents came within the scope of the insurance contract, with the result that the insurance companies had to pay, since all parties disputed their liability on the basis that the accidents themselves did not involve ‘use of vehicles’ in the specific circumstances of the accident. 56. By contrast, in the present case, the question is quite different, posed at a higher level of abstraction and generality: does an obligation to insure generally arise from the kind of use being made of the vehicle in this case? 57. For example, driving a car to and from work every day clearly falls within the notion of ‘use of vehicles’. There is an obligation to insure against civil liability. Does that obligation technically end when the car is parked in a (private) garage in the evening and its engine is switched off, only to be revived the following morning when the key is turned in the ignition and the car is once again driven on a public road? 58. I consider that clearly it does not. The activity a vehicle is used for or the mode it is in at any given time will vary. That cannot be the case for the general obligation to insure, which requires a clear beginning and end in time and a certain logical degree of continuity and foreseeability. 59. It is conceivable that, between those points in time, a vehicle may be employed in a way which does not amount to ‘use’ within the meaning of Article 3(1) of the First Directive. That is indeed what happened in the Andrade case. In general, it is likely that the tractor in that case was being used in a way that fell within the notion of ‘use of vehicles’ and was insured. At the specific time of the accident, however, it was being used as a machine, which did not constitute a ‘use of vehicles’. Yet the obligation to insure was not theoretically suspended during those minutes or hours when the tractor was being used as a machine. 60. It follows that, while the notion of use of vehicle is central to defining the scope of the obligation to insure, the two concepts are not identical. Bearing those distinctions in mind, I shall consider in more detail in the following sections the concept of ‘use of vehicles’ and the beginning and end points of the obligation to insure. 4. Definition of ‘use of vehicles’ 61. Since the notion of ‘use of vehicles’ includes the concept of ‘vehicle’ which has a separate definition under the First Directive, I will begin by looking at that first (a), and then proceed to the notion of ‘use’ (of vehicles) in its various contexts (b). (a) Vehicle 62. The definition of ‘vehicle’ under Article 1(1) of the First Directive is limited to motor vehicles ‘intended for travel’. 63. It is, in my view, clear that ‘intended’ in that context cannot refer to the subjective, individual intent of the owner or anyone else having control over the vehicle. Nor does it refer to what is being done with the vehicle at any particular point in time. 64. Rather, the words ‘intended for travel’ in the definition of ‘vehicle’ must logically refer to the objective purpose of the vehicle. That is supported by other language versions of the directive, which use rather neutral vocabulary. (26) Moreover, I agree with the Commission that making the definition of vehicle dependent on the subjective intent of its owner at a specific moment in time would lead to intolerable legal uncertainty. Finally, that interpretation is also confirmed by the Court’s judgment in Vnuk, where it held that the definition of ‘vehicle’ is independent of the use that is or ‘may be’ made of it. (27) 65. Therefore, and contrary to the views presented in particular by Ireland in its written pleadings, the fact that the owner is not using the vehicle for travel at a given point of time (and does not intend to do so) does not prevent it from being a ‘vehicle’ within the meaning of the First Directive, in relation to which there may be an obligation to insure. On the contrary, the concept of ‘vehicle’ must be objective and ‘stable’ (in the sense of continuing over a reasonable period of time). (b) Use 66. ‘Use of vehicles’ under Article 3(1) of the First Directive constitutes an autonomous concept of EU law, which must be interpreted in the light of the context of that provision and the objectives pursued by the rules of which it is part. (28) 67. As previously pointed out by the Court, (29) ‘use of vehicles’ is translated in rather different ways in the various official language versions. That underlines the need to interpret the concept in the light of the directive’s ‘dual objective of protecting the victims of accidents caused by motor vehicles and of liberalising the movement of persons and goods’. (30) In that regard, the Court has, moreover, stressed the increasingly strong protection provided to victims of accidents caused by vehicles over the years following the adoption of the First Directive. (31) 68. The above considerations have led the Court in its case-law to adopt a broad interpretation of the notion of ‘use of vehicle’, which ‘covers any use of a vehicle that is consistent with the normal function of that vehicle’. (32) 69. I would add the following observations in that regard, concerning the territorial and material scope of that definition. (i) Territorial scope of ‘use of vehicles’ 70. The notion of ‘use of vehicles’ is not limited to use in a particular place or on a particular terrain or territory. It is ‘not limited to road use, that is to say, to travel on public roads’. (33) In their written pleadings, Ireland and the United Kingdom Government argued in favour of an approach to the notion of ‘use of vehicles’ and the compulsory insurance obligation that distinguishes between use on public roads and elsewhere. 71. Whilst some contextual basis was proposed for that distinction, it is, in my view, rather meagre. (34) On the contrary, there is ample textual support for a broad reading of the territorial scope of the notion of ‘use of vehicles’ and the insurance obligation. In that regard, Article 1 of the First Directive gives a basic definition of ‘territory in which the vehicle is normally based’ as ‘the territory of the State in which the vehicle is registered’. The First Directive refers generally to the ‘territory of [another] Member State’ and to ‘motor vehicles travelling in Community territory’. No explicit distinction is drawn between (i) public and private land, or, (ii) areas that are designated for motor vehicles to travel through and areas that are not, in spite of the fact that the directive(s) deals quite extensively with its territorial applicability. 72. Moreover, such a distinction would potentially exclude from the insurance obligation under Article 3(1) of the First Directive many situations involving motor vehicles clearly capable of giving rise to accidents. That would risk seriously compromising one of the main purposes of the First Directive identified above, namely to protect victims of accidents caused by motor vehicles. (35) In that regard, it may well be the case that, in the light of land ownership structures and property law in certain Member States, individuals may be able to make extensive use of vehicles on private land. However, the possibility of those vehicles never being driven off the private land on public roads and the total absence of third parties entering that area, so that there is simply no risk of accidents, seems a rather unlikely and unrealistic scenario. It is not one that I think justifies trying to read limitations into the concept of ‘use of vehicles’ without any solid textual basis for doing so, and goes against the logic and purpose of the legislative instrument in question. 73. On those grounds in particular I see no reason to revisit the Court’s clear conclusions in the case-law cited above and to limit the concept of ‘use of vehicles’ to use in specific places. (ii) Material scope of ‘use of vehicles’ 74. As mentioned above, ‘use of vehicles’ ‘covers any use of a vehicle that is consistent with the normal function of that vehicle’. (36) In my view, the ‘normal function’ of a vehicle is to be used for ‘travel’, in other words in order to move from point A to point B, (37) for whatever purpose. This already seems fairly apparent from the definition of a ‘vehicle’ contained in Article 1(1) of the First Directive. 75. In that regard, it is correct that the Court has stated, notably in the judgment in Andrade, that the normal function of a vehicle is to be used as a means of ‘transport’. However, I do not consider that by employing that term, the Court intended to refer to a specific ‘transport’ function distinct from and logically narrower than that of ‘travel’. (38) It would rather appear to me that the Court sought to distinguish use as a machine from the normal function of a vehicle. In my view, and in the light of Article 1(1) of the First Directive, a more accurate definition of the ‘normal function’ of a vehicle is to be used for ‘travel’. 76. That said, if a vehicle is not travelling that does not mean that whatever it is doing generally falls outside the concept of ‘use of vehicles’. The Court’s case-law indicates rather, that any use made of a vehicle that is ‘consistent’ with its normal function falls within the scope of ‘use of vehicles’. That would, in principle, include situations where the vehicle is stationary for some time, irrespective of the owner’s intentions to travel with it later or not. 77. Building on the example already provided above (at point 57), when a car is parked overnight, with the owner having no intention of using it before morning, that stationary state is entirely consistent with its normal use. One may imagine that, the next morning, the owner impulsively takes a taxi to the airport instead of driving her car, and spends a week skiing. Alas, during her holiday she breaks a leg and the leg is put in plaster for a month. During her incapacitation she decides to sell her car, and in fact never uses it again. 78. Thus, after driving home from work on the last night before departing for her holidays, the owner, in practice, never drove the car again. Did the ‘use of the vehicle’ or the obligation to insure cease at any point during these events and if so when? When she turned off the engine for the last time? When she left to go on holiday? When she broke her leg and was actually unable to drive? When she decided to sell the car? Or some other point in time? 79. In my view, irrespective of all those (unfortunate) events, there still was an ongoing obligation for the car to be insured. It is true that, ex post facto, there may be specific ways in which a vehicle is employed at a given time that can be identified as falling outside the concept of ‘use of vehicles’, thus potentially negating liability for related accidents. That is confirmed by the judgment in Andrade. (39) 80. However, identification of such specific situations of ‘non-use’ after the event (ex post facto) does not negate the broader and general obligation to insure (ex ante). Rather, I consider that the reverse is in fact true: if a vehicle is intended to travel on land and can indeed do so, a general obligation to insure such a vehicle normally arises under Article 3(1) of the First Directive. That does not mean that, during the period covered by the insurance obligation, there will not be specific instances when, because of the precise type of use at the very moment the accident occurred, there will be no liability under the vehicle insurance contract. 81. In any event, it must be possible to determine ex ante whether there is indeed such a context of ‘use of vehicles’ giving rise to an obligation to insure, with a clear and objectively identifiable beginning and end points but being continuous between those points. Neither the mere fact that a vehicle is, in practice, stationary, nor the intentions of the owner or holder to abstain from driving the vehicle (especially if no formalities have been undertaken to communicate those intentions to the public authorities and to officially remove the vehicle from circulation), can be used to determine the existence of such a context and clearly and objectively identify those beginning and end points. 82. In short, I consider that, the starting point for establishing a context of ‘use of vehicles’ for the purposes of determining the existence of an obligation to insure should be that the vehicle is intended to travel on land and can indeed do so. I shall return to the question of how precisely to identify in practice the beginning and end points of the obligation to insure below. Before doing so, however, I will address some of the concerns raised in relation to an allegedly overly broad interpretation of the concept of ‘use of vehicles’ and the obligation to insure. (iii) Objections to a broad interpretation of ‘use of vehicles’ and the obligation to insure 83. First, Ireland in particular argues that a broad interpretation of ‘use of vehicles’ and the obligation to insure would lead to unintended and unacceptable results. Notably it would unjustifiably impose a compulsory insurance requirement on ‘large numbers of people’ who are ‘not using’ their vehicles (for travel on public roads), which does not pursue any objectives of the First Directive. 84. I disagree. 85. The suggestions of Ireland concerning the potential distinction between driving a vehicle on private land as opposed to public roads have already been dealt with above. (40) As for other potential instances of an unduly broad interpretation of the obligation to insure that would affect large numbers of people and lead to unintended and unacceptable results, Ireland’s arguments have remained somewhat unexplored. 86. In any case, as the Court has already stated, one of the dual purposes of the directives is to protect victims. Imposition of a broad compulsory insurance requirement contributes to that aim. The alternative is that, at least in cases of insolvency of the person liable for the accident, victims of accidents caused by uninsured vehicles may well not receive any compensation. I do not see anything in the First Directive or elsewhere that supports the idea that the legislature intended the cost of risk to be spread in that way as a default. On the contrary, Article 4 of the First Directive includes explicit derogations allowing the cost of risk to be shifted to compensation bodies in specific cases identified by Member States. (41) 87. I would add that, at least to some extent, the narrower interpretation of ‘use of vehicles’ and the obligation to insure that was argued for in particular by Ireland and the United Kingdom Government appears to be based on the idea that the specific factual circumstances of some situations involve a very significantly reduced likelihood of accident. For that reason, the inference made is that there is no need for compulsory insurance in those situations. Ireland refers, for example, to vehicles temporarily kept in a storage facility on private land or on display by a retailer. 88. I agree that in such cases the vehicle does not pose the same risk as one driven on the highway on a daily basis. However, the possibility of the car being driven, for example, being moved across the dealer’s forecourt, means that the risk, albeit reduced, still exists. I do not see how by dint of judicial interpretation, some kind of risk threshold can be read into the Motor Insurance Directives via the notion of ‘use’ (42) leading to the conclusion that there is no obligation to insure. In my view, such distinctions are clearly better and more appropriately dealt with by the motor insurance industry, or, if and to the extent necessary, by the public law regulation of the motor insurance market. For example, I understand that in some Member States, the insurance obligation is extremely broad but in cases where a vehicle is, in practice, not driven, insurance premiums are, as a result very low. Insurance companies may also charge different premiums based on the mileage, or use other means to allow for reasonable differentiation in premiums that matches the scope and extent of ‘use’ with the type of potential risk involved. 89. To sum up, on a systemic level, the fact that the vehicle might generally be stationary for (extended) periods and, as a result, the risk might be minimal, is perhaps a good reason for a difference in premiums, but not for excluding the duty to insure altogether. That is in particular the case since, as already stated above, the fact that there was no obligation to insure, in principle, means that there will be no safety net for compensation either. (43) 90. Second, Ireland also contends that an overly broad reading of the concept of ‘use of vehicles’ and the obligation to insure would strip the term ‘use’ of any meaning and make the obligation contingent on mere ownership. 91. I consider that concern to be unfounded. 92. As demonstrated by the judgment in Andrade, (44) the concept of ‘use of vehicles’ does have limits. Moreover, while the obligation to insure cannot be contingent on transient or subjective circumstances, that does not mean it is contingent on mere ownership. The obligation also has limits in time — a beginning and an end. It is to the identification of those limits that I now turn. 5. Beginning and end points of the obligation to insure (i) Registered and non-registered vehicles 93. As regards the ‘beginning and end points’, the registration of a vehicle in a Member State is, in my view, a key objective factor to be taken into account in establishing whether there is a general context of ‘use of a vehicle’ giving rise to an obligation to insure within the meaning of Article 3(1) of the First Directive. 94. Two scenarios can be distinguished in this regard. 95. First, the vehicle is and remains registered in the Member State. As long as the vehicle is registered, and no official measures have been taken to suspend or terminate that registration, it must be considered that there is a general context of ‘use of the vehicle’ within the meaning of Article 3(1) of the First Directive, giving rise to an obligation to insure. Registration of a vehicle is consistent with (and in most cases necessary for) its normal use for travel. 96. That does not automatically mean that, following registration, anything that is in practice done with the vehicle constitutes a ‘use’ for the purposes of determining liability in relation to a specific event or the scope of an insurance contract. While the case-law confirms that the concept of use is extremely broad, it does have limits. (45) 97. Second, there are the situations in which the vehicle is not registered in a Member State, because it has not yet been registered, because it is no longer registered, or because registration has been suspended. 98. The fact that the vehicle falls into this second scenario does not necessarily mean that the vehicle is automatically no longer subject to the insurance obligation under Article 3(1) of the First Directive. Absence of registration is indeed not necessarily inconsistent with normal use of a vehicle for travel. Or, put differently, vehicles may be suitable for and actually used to travel on land without being registered. That may be either legally, under conditions provided for by national law, or illegally, where they should be registered under the relevant national rules but are not. In either of these situations, such vehicles can potentially be involved in accidents. 99. There is nothing in the First Directive indicating that the legislature intended that either the compensation body or still less victims should, in principle, bear the risk in such situations. More generally, there is nothing in the First Directive that would indicate that the notion of ‘use of vehicles’ is limited to the use of registered vehicles. The overall scheme of the First Directive, in particular Article 1(4), first and second indents, and Article 3(1), rather implies an obligation to ensure that civil liability in respect of the use of vehicles on a Member State’s territory is also covered by insurance in cases where they are not registered. 100. However, in some cases there may be (temporary) deregistration or suspension of registration, which effectively requires that the vehicle not be used for travel on land, even for short distances (for example, by making such use of the vehicle a criminal offence). I understand that a similar system exists in certain Member States, for example, during winter months in the case of vehicles that are driven only during periods of good weather. I consider that, in such circumstances, ‘use of the vehicle’ is clearly and objectively excluded to the extent that it puts an end to the ‘ex ante’ obligation to insure. (46) 101. That leaves open the question of whether and under what other conditions a vehicle that is not registered (or in relation to which registration has been suspended) may potentially fall outside the insurance obligation. (ii) Non-registered vehicles falling outside the obligation to insure 102. I understand that, in the main case, the vehicle involved in the accident was registered. At the hearing, the Portuguese Government confirmed that the vehicle in question did have registration plates and that it was still subject to road tax. I will therefore not go into this point in great detail. 103. The issue of when the obligation to insure begins and ends in general was nonetheless discussed extensively at the oral hearing. Broadly, three types of situation were mentioned: (a) new vehicles that have not yet been registered but are clearly capable of being driven (for example, vehicles being transported from factories or sitting in dealership forecourts); (b) other vehicles, which are no longer registered or whose registration has been suspended and which are capable of being driven but are de facto not (for example, vehicles located in a museum); (47) (c) vehicles that are not registered and have been ‘incapacitated’ in some way through, for example, the removal of parts (wheels, battery and so on). 104. As regards (a) and (b), there are, in my view, several good reasons why the Court should not, in order to deal with such cases, begin reading elaborate (and potentially rather complex) limitations into the notion of ‘use of vehicles’ under the First Directive, for example based on the fact they are not driven often or unlikely to be driven. 105. First, such limitations simply have no clear textual basis in the directive. They would effectively have to be invented by the Court. They would sit uneasily with previous case-law giving a broad definition of ‘use of vehicles’. (48) 106. Second, to the extent that such vehicles are driven (for example across a dealership forecourt), they could potentially cause accidents. Without an obligation to insure, the victim would risk having no ‘safety net’ in the form of compensation. (49) Moreover, such an approach would again, under scenario (b), make the insurance obligation dependent on specific factual circumstances and the intentions of individuals, to the detriment of legal certainty. (50) 107. Third, and perhaps most importantly, there is a clear legal basis in the First Directive — Article 4 — for derogations from the obligation to insure in relation to certain persons and/or certain vehicles (or certain vehicles that have special plates). (51) If those derogations are used, then the same provision also explicitly states that Member States must provide a safety net for potential victims by making sure that compensation is paid in respect of any loss or injury caused by such explicitly excluded types of vehicles. 108. In such circumstances, there seems little justification for attributing a complex (even convoluted) judicial interpretation to the concept of ‘use of vehicles’, and in doing so potentially exposing victims to the risk of not being (fully) compensated, in order to cater for particular circumstances that could be perfectly well addressed using the derogations under Article 4. Put metaphorically, if one of the stated aims is to provide for a safety net, then it makes good regulatory sense to me that one should be casting a strong and thick net and then, if need be, release (exempt) the wrong fish, rather than throw out a net full of holes and then wonder how some fish got away. 109. As regards (c), there are, in practice, infinite ways to ‘incapacitate’ a vehicle, from removing the keys to removing the battery, the wheels and so on. At a certain point, it might even be said that the ‘vehicle’ no longer exists, let alone ‘use of the vehicle’. Thus, for example, removal of the engine means that the vehicle is technically no longer ‘motorised’ within the meaning of Article 1(1) of the First Directive. 110. In my view, however, whether or not there is sufficient incapacitation of a vehicle to conclude that there is no ‘vehicle’ within the meaning of the First Directive or that no ‘use’ can be made of it, is above all a question of proof and evidence. Whilst some abstract consideration of that issue is no doubt possible, I do not think it necessary to dwell on that issue in the present case. After all, there is no doubt about the fact that the car was clearly drivable and was indeed driven. 6. Application to the present case 111. On the basis of the facts as presented by the referring court, it is, in my view, clear that parking a fully functioning car in a yard, which — as confirmed at the hearing by the Portuguese Government — was still subject to road tax at the material time in the main proceedings, bore registration plates and in relation to which no formalities had been undertaken to officially remove it from circulation, cannot mean that the obligation to insure has been dispensed with. That is the case irrespective of the subjective intent of the owner, in so far as that intent was in no way officially communicated to the public authorities. 112. As noted above at points 94 to 100, the failure to undertake administrative formalities to remove the car from circulation is, to my mind, already decisive in confirming that there is a general context of ‘use of a vehicle’. The car’s precise location, its physical state, the fact that the owner does not drive (for medical reasons) and the owner’s subjective intentions in relation to the vehicle cannot alter that conclusion. 113. That is the general answer to the first question put by the referring court. However, that does not mean that that general answer must also be applicable in the individual case of Ms A. Juliana. Two points are worth highlighting in that regard. 114. First, the First Directive imposes an obligation on the Portuguese Republic to ensure that vehicles are insured. Whether that obligation has been fulfilled by the Member State and, if it has, on whom the obligation to insure is imposed, are questions of national law for the referring court to determine. 115. Second, even if the national law were at some stage to provide for the obligation to be imposed on the owner to insure her car, I wish to recall two elements that might be of relevance for the referring court. On the one hand, according to established case-law of the Court, even in cases where the provisions of a directive are capable of direct effect, Member States (including emanations thereof (52)) cannot rely directly on those provisions against individuals (absence of ‘reverse vertical’ direct effect). (53) On the other hand, a Member State cannot rely on the provisions of a directive that has not been transposed properly for the purposes of a conform interpretation of national law that has the consequence of imposing obligations on an individual. (54) 116. These principles of Union law are of particular relevance in situations when national laws that were supposed to transpose the relevant motor insurance directive could be said to be unclear or contradictory. That includes conflicting national judicial pronouncements on the relevant points of law. In that regard it is for the national court to assess and draw appropriate consequences in view of the facts of the individual case. 7. Conclusion on the first question 117. In the light of the foregoing, I propose to answer the referring court’s first question as follows: Article 3 of the First Directive (in force at the date of the accident) must be interpreted as meaning that the obligation to take out civil liability motor insurance extends to the situations in which the vehicle is, at the owner’s choice, immobilised in a private courtyard, away from the public road, but where no administrative formalities have been undertaken to deregister the vehicle officially. It falls to the Member States to determine under national law who is obliged to insure the vehicle in those circumstances. C. Question 2 118. By its second question, the national court asks whether Article 1(4) of the Second Directive must be interpreted as granting the Fund a right of subrogation against the owner of the vehicle even if the latter was not liable for the accident. The referring court also asks whether subrogation against the owner depends on the conditions of civil liability being met (and specifically whether the fact that the owner did not have control over the vehicle is relevant). 119. Article 1(4) of the Second Directive gives a right to Member States to provide for subrogation against the person ‘responsible for the accident’. However, that provision further provides that to the extent Member States avail themselves of that right, they may not allow the compensation body to make the payment of compensation conditional on the victim establishing in any way that the ‘person liable’ is unable or refuses to pay. 120. The possibility of subrogation (and conditions thereof) must therefore be provided for in national law. That includes defining the notion of person ‘responsible for the accident’ or ‘liable’ in national civil law. (55) None of the parties submitting observations contested that interpretation. 121. It follows that, to the extent the referring court asks whether Article 1(4) of the Second Directive must be interpreted as granting a right of subrogation, the answer is no. Article 1(4) only offers the possibility for Member States to do so. 122. As regards the conditions of exercising the right of subrogation, there is, in my view, some ambiguity in the order for reference as to what basis for ‘liability’ is being discussed: liability for the accident itself or liability based on failure to insure the vehicle (where there was an obligation to do so). 123. To the extent the question refers to liability for the accident, the conditions for such liability are to be determined by national law. I see no obstacle in EU law to the imposition of a condition that the person being held liable was in control of the vehicle at the time of the accident. 124. However, the referring court’s question asks if there is a right of subrogation against the owner ‘regardless of whether [she] was liable for the accident’, which I understand as meaning ‘regardless of whether the owner fulfils the conditions for liability for the accident’. Article 1(4) does not envisage such a possibility. That provision only envisages subrogation against a person who is liable for the accident. 125. To the extent that the referring court asks whether Article 1(4) of the Second Directive must be interpreted as meaning that the Fund has a right of subrogation against a person liable for failure to insure a vehicle, the answer is no. Again such a possibility is simply not referred to under Article 1(4) of the Second Directive and no such rule can therefore be inferred from that provision. However, that does not mean that the Member States would be prevented from providing for a right of subrogation under other circumstances, including against the person who failed to comply with the obligation to insure imposed by national law transposing Article 3(1) of the First Directive. That is again a matter for the national law. 126. In the light of the foregoing, I propose to answer the referring court’s second question as follows: Article 1(4) of the Second Directive must be interpreted as meaning that Member States may provide for a right of subrogation by a compensation body, such as the Fundo de Garantia Automóvel which, in the absence of civil liability insurance, paid compensation to the third parties injured by a traffic accident caused by the motor vehicle which was removed without the owner’s knowledge or consent from the private premises where it was immobilised, against the person or persons responsible for the accident. The conditions of liability of such person or persons are to be provided for under national law. Those conditions may include a requirement that the person(s) concerned had effective control of the vehicle at the relevant time. That provision does not require Member States to foresee or prevent them from foreseeing a right of subrogation under other circumstances, including against the person who failed to comply with the obligation to insure imposed by national law transposing Article 3(1) of the First Directive. V. Conclusion 127. I propose that the Court answer the questions referred by the Supremo Tribunal de Justiça (Supreme Court, Portugal) as follows: Question 1 Article 3 of Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability (in force at the date of the accident) must be interpreted as meaning that the obligation to take out civil liability motor insurance extends to the situations in which the vehicle is, at the owner’s choice, immobilised in a private courtyard, away from the public road, but where no administrative formalities have been undertaken to deregister the vehicle officially. It falls to the Member States to determine under national law who is obliged to insure the vehicle in those circumstances. Question 2 Article 1(4) of Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles must be interpreted as meaning that Member States may provide for a right of subrogation by a compensation body, such as the Fundo de Garantia Automóvel, which, in the absence of civil liability insurance, paid compensation to the third parties injured by a traffic accident caused by the motor vehicle which was removed without the owner’s knowledge or consent from the private premises where it was immobilised, against the person or persons responsible for the accident. The conditions of liability of such person or persons are to be provided for under national law. Those conditions may include a requirement that the person(s) concerned had effective control of the vehicle at the relevant time. That provision does not require Member States to foresee or prevent them from foreseeing a right of subrogation under other circumstances, including against the person who failed to comply with the obligation to insure imposed by national law transposing Article 3(1) of the First Directive. 1 Original language: English. 2 Council Directive of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability (OJ, English Special Edition 1972(II), p. 360). 3 Second Council Directive of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1984 L 8, p. 17). 4 Judgment of 11 July 2013, Csonka and OthersCsonka and Others (C‑409/11, EU:C:2013:512, paragraphs 28 and 31). 5 Especially in cases of serious physical injury or death, the possibility that the person liable for an accident would be able to fully compensate the victim is greatly reduced. Whilst there may be cases where the insurance company is insolvent, such as happened in the judgment of 11 July 2013, Csonka and OthersCsonka and Others (C‑409/11, EU:C:2013:512), those are, in principle, rare. 6 The same logic underlies Article 4 of the First Directive and Article 1(4) of the Second Directive. The latter provides for the creation of a compensation body in case the vehicle causing the accident is uninsured. The former allows for Member States to derogate from the obligation to insure, but in doing so requires them to designate the authority or body that must then compensate victims of accidents caused by vehicles benefiting from such derogations. 7 Judgment of 11 July 2013, Csonka and OthersCsonka and Others (C‑409/11, EU:C:2013:512, paragraphs 30 to 32). Clearly, the compensation body does, in a certain sense, ‘guarantee’ compensation in specific clearly identified sets of circumstances. At national level compensation bodies may indeed be called ‘guarantee funds’, as is, for example, the case in Portugal — ‘Fundo de Garantia Automóvel’. When the Court states that the compensation body is not a ‘guarantee scheme’, I understand that it means essentially that the body is not there generally to step in and so effectively replace the obligation to insure. 8 In addition, the compensation body is required to intervene in other specifically defined situations. Thus, for example, Article 1(4) provides that it must also intervene when the vehicle is unidentified. 9 Depending on the exact system of financing of the compensation body that may mean a larger or smaller group (for example, if the body is financed through general taxation as opposed to the insurance premiums of individuals). 10 See in that sense judgment of 11 July 2013, Csonka and OthersCsonka and Others (C‑409/11, EU:C:2013:512). In that case, the insurer was insolvent. However, the national guarantee body had no obligation to intervene because the obligation to insure had in fact been respected. 11 Judgment of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146). 12 Judgment of 28 November 2017, Rodrigues de Andrade (C‑514/16, EU:C:2017:908). 13 Judgment of 20 December 2017, Núñez TorreiroNúñez TorreiroNúñez Torreiro (C‑334/16, EU:C:2017:1007). 14 Judgment of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146). 15 Judgment of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146, paragraph 49). 16 Judgment of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146, paragraph 52, see also paragraphs 50 and 53 to 55). 17 Judgment of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146, paragraph 56). Emphasis added. 18 Judgment of 28 November 2017, Rodrigues de Andrade (C‑514/16, EU:C:2017:908). 19 Judgment of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146). 20 Judgment of 28 November 2017, Rodrigues de Andrade (C‑514/16, EU:C:2017:908, paragraph 40). Emphasis added. 21 Judgment of 20 December 2017, Núñez TorreiroNúñez TorreiroNúñez Torreiro (C‑334/16, EU:C:2017:1007). 22 Judgment of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146). 23 Judgment of 28 November 2017, Rodrigues de Andrade (C‑514/16, EU:C:2017:908). 24 Judgment of 28 November 2017, Rodrigues de Andrade (C‑514/16, EU:C:2017:908, paragraph 40). See also judgments of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146, paragraph 59), and of 20 December 2017, Núñez TorreiroNúñez TorreiroNúñez Torreiro (C‑334/16, EU:C:2017:1007, paragraph 32). 25 Judgments of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146, paragraph 19); of 28 November 2017, Rodrigues de Andrade (C‑514/16, EU:C:2017:908, paragraph 12); and of 20 December 2017, Núñez TorreiroNúñez TorreiroNúñez Torreiro (C‑334/16, EU:C:2017:1007, paragraph 11). 26 For example in Czech: ‘určený k’; Dutch: ‘bestemt’; French: ‘destiné à’; German: ‘bestimmt’; Italian: ‘destinato a’; Spanish: ‘destinado a’; or Portuguese: ‘destinado a’. 27 Judgment of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146, paragraph 38). 28 Judgments of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146, paragraphs 41 and 42); of 28 November 2017, Rodrigues de Andrade (C‑514/16, EU:C:2017:908, paragraph 31); and of 20 December 2017, Núñez TorreiroNúñez TorreiroNúñez Torreiro (C‑334/16, EU:C:2017:1007, paragraph 24). 29 Judgment of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146, paragraphs 43 to 45). 30 Judgment of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146, paragraph 49). 31 Judgment of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146, paragraph 52). 32 Judgments of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146, paragraph 59); of 28 November 2017, Rodrigues de Andrade (C‑514/16, EU:C:2017:908, paragraph 34); and of 20 December 2017, Núñez TorreiroNúñez TorreiroNúñez Torreiro (C‑334/16, EU:C:2017:1007, paragraph 28). 33 Judgment of 20 December 2017, Núñez TorreiroNúñez TorreiroNúñez Torreiro (C‑334/16, EU:C:2017:1007, paragraph 28). 34 Ireland cites in that regard Article 12(3) and Article 23(5) of the directive which codified the Motor Insurance Directives, Directive 2009/103/EC, which mention, respectively, risks to ‘non-motorised road users’ and ‘traffic accident[s]’ (Directive 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)). In relation to Article 12(3), I note that Article 12 is entitled ‘Special categories of victim’. Article 12(1) refers to insurance in relation to harm to passengers, without any reference to ‘roads’. If such a significant limitation were intended in Article 12(3), it would logically also appear in Article 12(1). Article 23(5) relates to logistics of recovery (information centres) and therefore should not be used to read significant limitations in the scope of the insurance obligation itself. Also, no provisions equivalent to Article 12(3) and Article 23(5) exist in the First and Second Directives. 35 See above point 67. To the extent that Ireland and the United Kingdom Government rely on the free movement aims of the First and Second Directives, I note that the Court clearly refers, for example, in Vnuk, to the ‘dual purpose’ of the directives and indeed places more emphasis on the purpose of increased protection of victims (judgment of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146, paragraph 49 et seq.)). 36 Judgments of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146, paragraph 59); of 28 November 2017, Rodrigues de Andrade (C‑514/16, EU:C:2017:908, paragraph 34); and of 20 December 2017, Núñez TorreiroNúñez TorreiroNúñez Torreiro (C‑334/16, EU:C:2017:1007, paragraph 28). 37 Thus excluding the Holtzman effect that famously allowed for folding of space and time and thus for ‘travelling without moving’ in Frank Herbert’s Dune (first edition in Chilton Books, Philadelphia, 1965). However, it is safe to assume that even if the Holtzman effect were ever actually to be put into practice, it would be used for other types of ‘vehicles’ than those ‘intended for travel on land and propelled by mechanical power, but not running on rails, and any trailer, whether or not coupled’ in the meaning of Article 1(1) of the First Directive. 38 It could be argued that whenever a vehicle is moving, it will be travelling. But the purpose of that travel may not always be the transport of goods or people. See, for a similar discussion, for example, judgment of 28 July 2016, Robert Fuchs (C‑80/15, EU:C:2016:615, paragraphs 28 to 36), concerning the issue whether or not providing flight training services amounts to transport of persons, or of 5 July 2017, Fries (C‑190/16, EU:C:2017:513, paragraphs 81 to 88), in the context of ferry flights moving a plane between two airports without transporting passengers, cargo, or mail. In both of these cases, there was travel, but arguably no transport (unless of course it is maintained that the mere fact of moving a vehicle from point A to point B amounts by definition to the transport of that vehicle). 39 Judgment of 28 November 2017, Rodrigues de Andrade (C‑514/16, EU:C:2017:908). 40 Points 70 to 73 of this Opinion. 41 See also above, point 35 of this Opinion. 42 For example, the vehicle will very rarely be driven or only for limited distances. 43 Above, points 34 to 36 of this Opinion. 44 Judgment of 28 November 2017, Rodrigues de Andrade (C‑514/16, EU:C:2017:908). 45 As evidenced by the judgment in Andrade and discussed in detail above in points 74 to 82 of this Opinion. 46 I stress that that does not mean there cannot be any use of the vehicle. It may of course be stolen and/or driven illegally. In such circumstances, however, the vehicle would be driven in breach of an obligation to insure as (exceptionally) identified ex post, thus preserving the compensation fund safety net for victims. 47 Aside from the kind of situations referred to above at point 100. 48 Above, point 47 of this Opinion. 49 Above, point 35 of this Opinion. 50 Above, point 62 of this Opinion. 51 Those derogations vary to a great degree from one Member State to another. At the time of delivery of this Opinion, a list is available on the Commission’s website at https://ec.europa.eu/info/business-economy-euro/banking-and-finance/insurance-and-pensions/motor-insurance_en. 52 Judgments of 12 July 1990, Foster and Others (C‑188/89, EU:C:1990:313, paragraph 18), and of 10 October 2017, Farrell (C‑413/15, EU:C:2017:745, paragraph 33 to 35). 53 Judgment of 8 October 1987, Kolpinghuis NijmegenKolpinghuis Nijmegen (80/86, EU:C:1987:431). 54 Judgments of 26 September 1996, Arcaro (C‑168/95, EU:C:1996:363, paragraph 42), and of 5 July 2007, Kofoed (C‑321/05, EU:C:2007:408, paragraph 45). 55 Judgment of 23 October 2012, Marques Almeida (C‑300/10, EU:C:2012:656, paragraph 29).