Opinion of the Advocate General — ECLI:EU:C:2025:735
Date: 2025-09-25
Language of the case: Dutch

Summary of content Contract law. Insurance law. Concept of ‘driver’ in 
Article 4(1) of the Motor Insurance Liability Act 
(WAM) and Article 12(1) of Directive 2009/103/EC. 
Accident due to passenger intervention in steering 
(applying handbrake). Passenger protection, loss of 
capacity of driver? Supreme Court submits preliminary 
questions to Court of Justice of the European Union. 
[…] […] 
 
[…] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 5. 7. 2024 – CASE C-490/24 
 
2  
HOGE RAAD DER NEDERLANDEN (SUPREME COURT OF THE 
NETHERLANDS) 
CIVIL CHAMBER 
[…] 
Date 5 July 2024 
JUDGMENT 
In the case 
STICHTING KOSKEA, as trustee of ED, 
based in Grou, 
APPELLANT in cassation, 
hereinafter: the Stichting and ED, 
[…] 
against 
NATIONALE NEDERLANDEN SCHADEVERZEKERING MAATSCHAPPIJ 
N.V., trading as REAAL SCHADEVERZEKERING N.V., based in The Hague, 
RESPONDENT in cassation, 
hereinafter: Nationale Nederlanden, 
[…] 
1 Procedure 
1.1 […] 
1.2 […] [the parties agree on the questions to be put to the Court] 
2 Starting points and facts 
2.1 This appeal in cassation concerns the Motor Insurance Liability Act 
(‘WAM’). According to Article 4(1) WAM, damage suffered by the driver 
of the motor vehicle need not be covered. The question in this case is 
whether a victim who was behind the wheel in a serious car accident ceased 
to have the capacity of driver because an passenger suddenly applied the 
handbrake while the vehicle was moving, thus causing the accident. 
STICHTING KOSKEA 
 
3 
2.2 Starting points in cassation. 
(i) In late 2016, a unilateral accident occurred involving a minibus (‘the 
car’) belonging to a football club (‘the club’). The club had insured the car 
against the risk of third-party liability in accordance with the WAM with 
Reaal Schadeverzekering N.V. (‘Reaal’). Reaal was subsequently 
incorporated into Nationale Nederlanden. The club had also taken out 
passenger accident insurance (‘SVI’) with Nationale Nederlanden. 
(ii) The car was intended to allow players from the club to travel to and 
from the club grounds. On the date of the accident the car was at the disposal 
of [appellant] together with some teammates. 
(iii) [Appellant] and his teammates drove the car to the grounds of another 
football club after an away game. There they encountered a former trainer of 
theirs (‘the trainer’). The trainer then travelled with [appellant] and his 
teammates in the car to attend a party at a third football club, [appellant] sat 
behind the wheel of the car, his teammates sat beside and behind him and 
the trainer sat in the back right-hand corner of the car. 
(iv) While the car driven by [appellant] was travelling along an N-road, the 
trainer suddenly applied the car’s handbrake. At the time, the car was 
travelling at around 70 km/h. As a result of the handbrake being applied 
while the car was moving, the rear wheels of the car locked up and the car 
went into an uncontrolled sideways skid, colliding with the concrete pillar of 
the railway viaduct to the right of the carriageway. The car then spun around 
on its axis in the right-hand lane and came to a stop in the left-hand lane; in 
the process, the rear of the car collided with another pillar, while [appellant] 
and the teammate sitting next to him were ejected from the car during the 
accident, both of them suffering very serious injuries. 
(v) The teammate sitting next to [appellant] died of his injuries in hospital 
the day after the accident, and [appellant] was hospitalised with life-
threatening injuries. The trainer and the other teammate suffered minor 
injuries in the accident. 
(vi) [Appellant] spent some time in hospital after the accident and 
underwent a programme of rehabilitation. He sustained brain damage from 
the accident, from which he still suffers symptoms and limitations. The 
UWV (Employee Insurances Implementing Agency) declared [appellant] 
totally unfit for work. He receives a benefit under the IVA (Income 
Provision Scheme for Fully Occupationally Disabled People) in this respect. 
Furthermore, the assets of [appellant] have been placed under administration 
as he is no longer able to look after his own financial interests. The Stichting 
is his administrator. 
(vii) For his damage as a result of the accident, [appellant] relied on liability 
on the part of Nationale Nederlanden under the WAM and policy cover 
REQUEST FOR A PRELIMINARY RULING OF 5. 7. 2024 – CASE C-490/24 
 
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under the SVI concluded with Nationale Nederlanden. In response, 
Nationale Nederlanden informed [appellant] at the end of 2016 that, in the 
absence of further information on the facts of the case, it was not yet in a 
position to comment on WAM liability or policy coverage. However, 
Nationale Nederlanden did pay an initial advance of 5 000 to [appellant] at 
that time and took charge of the subsequent settlement of any claims. 
Nationale Nederlanden subsequently continued to make advance payments 
to [appellant] for some time. 
(viii) After sending the police report on the facts of the accident by 
[appellant] to Nationale Nederlanden, Nationale Nederlanden’s lawyer 
notified [appellant’s] lawyer in January 2020 that there is no cover under the 
SVI because [appellant] was acting as driver of the car after using and being 
under the influence of alcohol, and that there is no cover under the WAM 
policy because it does not cover damage suffered by the driver. Furthermore, 
in the context of own fault for possible insurance coverage, this letter 
referred to the fact that [appellant] was not wearing a seat belt at the time of 
the accident. 
2.3 In partial dispute proceedings […], [appellant] (represented by the Stichting 
as administrator), in so far as relevant, sought a declaration that Nationale 
Nederlanden is liable under the WAM for the damage suffered and to be 
suffered by [appellant]. To that end, he argued, inter alia, that the exclusion 
for liability for damage caused to the driver of the motor vehicle causing the 
accident of Article 4(1) WAM did not apply here. Although [appellant] was 
still behind the wheel of the car at the time of the accident, he could no 
longer actually be considered the driver within the meaning of the WAM 
because by applying the handbrake, the trainer was acting as the driver of 
the car. 
2.4 By order in the partial dispute (‘the partial dispute order’), 1 the district court 
ruled, in so far as relevant, that at the time of the accident, [appellant] could 
no longer be regarded as the driver within the meaning of Article 4(1) 
WAM, such that Nationale Nederlanden was, in principle, obliged to 
compensate his damage. To that end, the district court considered that after 
the trainer applied the handbrake, [appellant] was no longer able actually to 
drive the car himself, in the sense that he could influence the direction of 
travel, speed and locomotion of the car. It must therefore be assumed that 
from the moment the trainer applied the handbrake, [appellant] lost the 
capacity of driver, and as such could no longer be considered to have been 
driving the car at the time of the accident. […] 
2.5 In the main proceedings, Nationale Nederlanden […] appealed against the 
partial dispute order. The court of appeal 2 set aside the partial dispute order 
 
1 Rechtbank Noord-Nederland 22 October 2020, ECLI:NL:RBNNE:2020:3725. 
2 Gerechtshof Arnhem-Leeuwarden 13 December 2022, ECLI:NL:GHARL:2022:10711. 
STICHTING KOSKEA 
 
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and dismissed [appellant’s] claims in so far as based on WAM cover. To that 
end, in so far as relevant, the court of appeal held as follows: 
4.8 The court of appeal does not follow the district court in its 
interpretation of the concept of driver and its subsequent opinion that the 
action of [the trainer] resulted in [appellant] no longer qualifying as the 
driver from that moment on, as he was no longer capable of actually driving 
the car himself. The court of appeal considers […] that one does not cease to 
be the driver if the movement of the vehicle has become uncontrollable. 3 
4.9 In the opinion of the court of appeal, it is also not possible to read a 
different interpretation of the term ‘driver’ in […] the judgment and ruling in 
the criminal case against [the trainer]. After all, these are criminal cases in 
which the question was whether the person who applies the handbrake 
should be regarded as the driver. In the ruling of the Supreme Court, the 
concept of driver was broadened […] from the point of view of protecting 
road safety, in order to prevent, as far as possible, behaviour that affects 
traffic no longer falling within the scope of traffic law or a specific traffic 
sanction, which appears to be tailored precisely to irresponsible traffic 
behaviour, from having to be disapplied. 
Therefore, the fact that the person applying the handbrake overruled the 
other driver by assuming the role of driver does not, in the opinion of the 
court of appeal, mean that there is not still (still) a different driver. 
Nor do the rulings of the criminal courts in the case against [the trainer] lead 
to a different interpretation. For example, in that criminal case, this court of 
appeal considered that [the trainer] behaved in a legal sense as a driver and 
thus took the actual driver completely by surprise, while the Supreme Court 
also held that the court of appeal found that the defendant [] had applied the 
handbrake as a passenger, an action that took the driver completely by 
surprise. 
4.10 Unlike the district court in this case […], 4 the court of appeal is of 
the opinion that [appellant] did not lose his capacity as driver at the moment 
the handbrake was applied, as a result of which he could no longer be 
regarded as the driver at the time of the accident, since [appellant] remained 
the person who took the driver’s seat behind the wheel, set the car in motion 
and determined the speed and direction of travel. He was operating the 
controls of the motor vehicle, and this fact was not altered by [the trainer] 
suddenly applying the handbrake and thereby also performing a driving act. 
 
3 […] 
4 […] 
REQUEST FOR A PRELIMINARY RULING OF 5. 7. 2024 – CASE C-490/24 
 
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4.11 Referring to the ruling of the Benelux Court of Justice of 
8 December 1994, the court of appeal notes that Nationale Nederlanden did 
not refute in sufficient detail that although the driver and the person 
transported can both have the capacity of an insured person, they are 
nevertheless different persons and no one can be insured both in the capacity 
of driver and in the capacity of a transported person, and that including the 
driver in the category of transported persons amounts to an infringement of 
the very principles of compulsory motor vehicle liability insurance . 5 
[Appellant] has not argued how he should be classified if he cannot be 
considered a driver. Without further explanation, which is lacking, it is 
impossible to see that [appellant] should be regarded as a transported person 
within the meaning of the WAM. 
4.12 In the opinion of the court of appeal, no support can be found in the 
case-law of the Benelux Court of Justice for the interpretation given by the 
district court to the term ‘driver’. It follows from the aforementioned ruling 
of the Benelux Court of Justice that the driver of the motor vehicle can be 
excluded from the right to a benefit (Article 4 GB). […] [Th]e court of 
appeal [is] of the opinion that it follows from this ruling that this provision 
does not (also) apply to the driver liable for the accident but to the driver of 
the motor vehicle causing the accident who is not liable, suffering damage 
(Benelux-Gerechtshof, r.o. 27, 29)6 […]. 
4.13 In the opinion of the court of appeal, it also does not follow from 
case-law of the Court of Justice that Article 4(1) [WAM] should be 
interpreted restrictively. Although it does follow from the ruling of the Court 
of Justice cited by the district court [30 June 2005, Candolin and Others, 
Case C-537/03, ECLI:EU:C:2005:417] and the Second Motor Insurance 
Directive referred to therein that it is in the interests of victims that the 
effects of certain exclusion clauses be limited to the relationship between the 
insurer and the person liable for the accident, under the influence of the 
Third Motor Insurance Directive, Article 4(1) WAM precisely stipulates that 
(only) liability in respect of the driver can still be excluded from cover. 7 
4.14 The court of appeal answers in the affirmative the question of 
whether the exclusion of Article 4(1) WAM is applicable, even if the driver 
himself is not at fault in respect of the injuries sustained by him which, in 
the opinion of the court of appeal, should be addressed in this case in the 
context of the third-party liability claim of [appellant]. 8 
 
5 Court of appeal footnote: BenGH 8 December 1994. NJ 1995/529; VR 1995/114 /Assurance-
Liegeoise/Adam, r.o. 20. 
6 […] 
7 […]. 
8 […]. 
STICHTING KOSKEA 
 
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3 Assessment of the appeal 
3.1 In essence, the plea argues that the opinion of the court of appeal that 
[appellant] was still the driver at the time of the accident is erroneous in law 
or incomprehensible. According to the plea, [appellant] could no longer be 
considered the driver after the trainer applied the handbrake, resulting in 
[appellant] no longer being able actually to drive the car himself. 
3.2 The plea thus raises the issue of how the concept of driver in Article 4(1) 
WAM should be interpreted. That provision reads as follows: 
Article 4 
1. The insurance need not cover liability for damage caused to the driver 
of the motor vehicle causing the accident. 
3.3 With Article 4(1) WAM, the Dutch legislator used the exception provided 
for in Article 1 of Directive 90/232/EEC 9 (‘the Third WAM Directive’), 
now Article 12(1) of Directive 2009/103/EC (‘codified Directive 
2009/103’). 10 That Article 12(1) states that compulsory insurance must 
cover liability for the damage of all passengers except the driver. The 
preamble to the Third WAM Directive considered that this provision aims to 
fill the gaps in compulsory insurance cover for motor vehicle passengers in 
some Member States, in order to protect this particularly vulnerable category 
of potential victims. 
3.4 The Court of Justice of the European Union has stressed the importance of 
passenger protection in several rulings. Thus, the Court pointed out that 
Article 3 of Directive 84/5/EEC 11 (‘the Second WAM Directive’) aims to 
ensure that all passengers who are victims of an accident caused by a vehicle 
can obtain compensation for the damage they suffer under compulsory 
motor vehicle insurance, and that this provision should be useful. According 
to the Court of Justice, the latter precludes national legislation that, on the 
basis of general and abstract criteria, merely by virtue of the fact that the 
passenger contributed to the damage, denies or disproportionately restricts 
the passenger’s right to compensation. In the opinion of the Court of Justice, 
 
9 Third Council Directive 90/232/EEC of 14 May 1990 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 1990 L 129/33. 
10 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 (codified version), OJ 2009 
L 263/11. 
11 Second 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, OJ 1984 L 8/17. 
REQUEST FOR A PRELIMINARY RULING OF 5. 7. 2024 – CASE C-490/24 
 
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such a restriction is possible only in exceptional circumstances and on the 
basis of an individual assessment. 12 
3.5 The case-law of the Court of Justice explicitly states that Article 1 of the 
Third WAM Directive (now Article 12(1) of codified Directive 2009/103) 
only distinguishes between the driver and other passengers. 13 At issue in 
this case is how to interpret this exception to the general rule of passenger 
protection set out above in 3.3 to 3.4. In particular, the issue is whether 
Article 12(1) of codified Directive 2009/103 is to be interpreted as requiring 
compulsory insurance to cover liability for the (initial) driver’s damage in a 
case where an passenger interferes with the steering of the motor vehicle and 
an accident occurs as a result of that intervention. If this question is 
answered in the affirmative, the issue is whether there are certain 
requirements arising from EU law that the national court must take into 
account when determining whether, in the circumstances of the case, a 
driver within the meaning of Article 12(1) of codified Directive 2009/103 
has lost the capacity of driver and qualifies for passenger protection under 
the general rule. 
3.6 The interpretation of the exception that may be made in respect of the driver 
under EU law cannot be deduced beyond reasonable doubt from EU law. 
Like the First 14 and Second WAM Directives, the Third WAM Directive 
and now the codified Directive 2009/103 do not contain a definition of the 
term ‘driver’. This also applies to the other WAM Directives. 15 
3.7 The Supreme Court sees the foregoing as grounds for referring questions to 
the Court of Justice for a preliminary ruling. 
 
12 Judgment of 30 June 2005, Candolin and Others, Case C-537/03, ECLI:EU:C:2005:417 
paragraphs 27-30. See judgment of 19 April 2007, Farrell, Case C-356/05, 
ECLI:EU:C:2007:229, paragraphs 24-29. 
13 Judgment of 30 June 2005, Candolin and Others, Case C-537/03, ECLI:EU:C:2005:417, 
paragraph 32. 
14 Council Directive of 24 April 1972 on the approximation of the laws of the 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 (72/166/EEC), OJ 1972 L 103/1. 
15 Directive 2000/26/EEC of the European Parliament and of the Council of 16 May 2000 (Fourth 
Motor Insurance Directive), OJ 2000, L 181/65; Directive 2005/14/EC of 11 May 2005 
amending Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC and 90/232/EEC and 
Directive 2000/26/EC of the European Parliament and of the Council relating to insurance 
against civil liability in respect of the use of motor vehicles, OJ 2005, L 149/14; Directive (EU) 
2021/2118 of the European Parliament and of the Council of 24 November 2021 amending 
Directive 2009/103/EC 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, OJEU 2021, L 
430/1. 
STICHTING KOSKEA 
 
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4. […]  
[The facts relevant to the questions are set out in section 2.2] 
5 Questions of interpretation 
1. Is Article 12(1) of codified Directive 2009/103 to be interpreted as requiring 
compulsory insurance to cover liability for the (initial) driver’s damage in a case 
where a passenger interferes with the steering of the motor vehicle and an accident 
occurs as a result of that intervention? 
2. If the first question is answered in the affirmative, do certain requirements 
arise from EU law that the national court must take into account when 
determining whether a driver, within the meaning of Article 12(1) of Directive 
2009/103, has lost the capacity of driver in the circumstances of the case and in 
entitled to claim passenger protection under the general rule? 
6 Decision 
- the Supreme Court asks the Court of Justice of the European Union to rule 
on the questions formulated in section 5 above; 
[…] [stay of proceedings, final wording and signature]