Abstract;Judgment — ECLI:EU:C:2024:761
Date: 2024-09-19
Language of the case: French
Court formation: First Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: France

Summary of the issue 58. Directive 2009/103 does not govern the question of the abuse, by the policyholder, of the rights afforded to him or her by that directive. However, there is, in EU law, a general principle that the application of the rules of EU law cannot be extended to cover abusive or fraudulent transactions. In addition, it appears to me that the application of that principle in the context of the enforceability of the nullity of an insurance contract was also considered by the Court in the recent order in Liberty Seguros. 59. The question referred for a preliminary ruling which the Court analysed in that order had its origin in proceedings brought by the insurer for a declaration of the nullity of an insurance contract on account of false statements made by the policyholder regarding the activities carried out with the vehicle concerned. The court before which those proceedings had been brought had to rule on whether that nullity could be relied on against third parties who were victims of a road traffic accident. 60. The Court answered in the negative and found, inter alia, that it cannot be argued that, in a situation in which the policyholder has concealed the real activities which he or she intended to carry out with the vehicle concerned and where the passengers must have been aware of the unlawful nature of the service provided by the policyholder, EU law is relied upon with the aim of circumventing national law in order to derive an advantage from national law which runs counter to the objectives and the aims of EU law (24). 61. In that passage, it appears that the Court wished to indicate that the situation at issue did not correspond to the two main contexts in which the concept of abuse may be analysed, that is to say, when EU law is invoked in order to evade national law and when provisions of EU law are relied upon to gain advantages in a manner which runs counter to the objectives and the aims of those same provisions (25). 62. If, taking into account the context in which it appears, my reading of the passage above is correct, the situation in which the Court ruled corresponds to the second context, namely where EU law was relied upon by the persons injured in a road traffic accident who were seeking to rely on their status as ‘third-party victims’ so as not to be deprived, on account of the nullity of the insurance contract arising from the false statements made by the policyholder, of their right to compensation. 63. By contrast, in the present case, if Matmut’s line of reasoning is followed, it is the policyholder who is seeking to rely on his status as a ‘third-party victim’ to achieve the same objective. In such a situation, EU law and, more specifically, Articles 3 and 13 of Directive 2009/103, would be invoked in order to evade the application of a national provision on the nullity of an insurance contract which is otherwise enforceable against a person who has made false statements. 64. In those circumstances, it is for the national court to verify, in accordance with the rules of evidence of national law, provided the effectiveness of EU law is not undermined, whether the factors constituting an abusive or fraudulent practice are present in the case before it (26). When giving preliminary rulings, the Court may, if appropriate, specify indicia in order to guide national courts in the assessment of the cases that they have to decide (27). I will therefore make a few comments on the implementation of the principle of prohibition of fraud and abuse in the event that the Court were to decide to specify such indicia to the referring court. (2) Comments on the implementation of the principle of prohibition of fraud and abuse 65. An objective element and a subjective element must be established in order to find that an abusive practice exists. 66. According to the Court’s case-law (28), proof of an abusive practice requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the EU rules, the purpose of those rules has not been achieved and, second, a subjective element consisting in the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it. 67. In my view, since, in the present case, the aim pursued by the EU rules appears a priori to be achieved, it appears to me expedient to begin by analysing not the objective element but the subjective element in order to determine what the intention of the person concerned was and to ascertain whether that intention constitutes abuse as well as whether, where appropriate, the desired outcome may undermine the objective laid down in EU law (29). 68. The objective pursued by Articles 3 and 13 of Directive 2009/103 is to ensure that, subject to the exceptions provided for in that directive, any person injured in a road traffic accident is entitled to be compensated and to disapply national provisions and contractual clauses which may limit that entitlement. 69. It is established that PQ was injured during the accident at issue in the main proceedings and that, under the applicable law, he is entitled to compensation for the loss or injury suffered. In addition, there is nothing to indicate that that accident occurred in artificially created conditions or that, in the light of the fact that the driver is excluded from the persons covered by the insurance (30), rather than driving the vehicle himself, PQ took the passenger seat in order to be eligible for compensation from the insurer in the event of an accident. 70. Moreover, it must be borne in mind that, by its argument, Matmut submits not that TN was driving the vehicle concerned when the accident occurred but that he was not identified as the usual driver of that vehicle when the insurance contract was concluded. In that regard, if PQ were the usual driver of the vehicle and TN occasionally drove it, the question of the nullity of the insurance contract would not arise. After all, Directive 2009/103 precludes the exclusion of the insurer’s obligation to compensate a victim of a road traffic accident involving an insured vehicle when that accident has been caused by a person who is not the person covered by the insurance policy (31). 71. Thus, Matmut’s argument is concerned with the fact that PQ made a false statement when concluding the insurance contract and that he is seeking to have disapplied, not for the benefit of any victim but for his personal benefit, a national provision under which that insurance contract is null and void by virtue of that false statement. 72. In that regard, I note that the Court uses different forms of words to describe the subjective element of an abusive or fraudulent practice. 73. In some of its judgments, the Court states that the subjective element consists in the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it (32), whereas, in others, it observes that that element exists only where the essential aim of the practices concerned is simply to obtain such an advantage (33). 74. In any event, it must be stated that, as far as concerns the evasion of national law by means of secondary law, the prohibition of such practices is not relevant where the transactions concerned may have some explanation other than the mere attainment of an undue advantage (34). 75. Accordingly, it is necessary to examine whether the essential aim of the practice at issue by PQ was simply to evade national provisions which would otherwise apply. In that regard, when checking for an abusive practice, the referring court must take into account all the facts and circumstances of the case, including those preceding and following the transaction alleged to be abusive (35). 76. As I understand the reference for a preliminary ruling, the false statements were made by PQ in order to comply with the obligation to insure the vehicle concerned and to benefit from a more advantageous insurance premium than that which would have been payable if the identity of the usual driver of that vehicle had been known to the insurer. It appears from the order for reference that the reason for making those false statements was to avoid stating that TN was the usual driver of the vehicle because he had been previously convicted of drink-driving. That fact manifestly altered the insurer’s opinion of the risk. 77. Therefore, subject to the determinations to be made by the referring court, the view cannot be taken that PQ made false statements with the essential aim of relying himself on Articles 3 and 13 of Directive 2009/103 and of evading a national provision on the legal conditions for the nullity of insurance contracts. In the light of the foregoing, and having regard to the provisions of that directive, PQ must be regarded as being a ‘third party who has been the victim’ of an accident. 78. With regard to those determinations, it should be added that the person accused of having engaged in fraudulent or abusive practices must be given the opportunity to rebut the evidence upon which that allegation is based, with due regard to the safeguards associated with the right to a fair trial (36). 79. For the sake of completeness, the question could be raised whether Article L. 113-8 of the Insurance Code should not be regarded as a national provision by which the French legislature seeks to remedy fraudulent and abusive practices by policyholders. However, a national provision of that kind may be applied only where the conduct of the person concerned is in any case, in accordance with the general principle of EU law on the prohibition of fraud and abuse, regarded as being fraudulent or abusive (37). The application of a national provision must not detract from the full effect and uniform application of Articles 3 and 13 of Directive 2009/103 (38). It cannot therefore alter the scope of those provisions (39), which would be the case if the policyholder and the person who made the false statements were denied the status of ‘third-party victim’ for the purposes of those provisions. 80. In those circumstances, it remains to be determined whether the effectiveness of Articles 3 and 13 of Directive 2009/103 preclude the nullity of the insurance contract from being relied on against a third-party victim who is the policyholder and the person who made the false statements when that contract was concluded. 2. The effectiveness of Articles 3 and 13 of Directive 2009/103 (a) The enforceability of the nullity of the contract against a third-party victim 81. In the present case, the question arises whether an insurance company may refuse entitlement to compensation because the nullity of the insurance contract as a result of the false declarations by the policyholder is enforceable against that policyholder. 82. As I have noted (40), the purpose of Directive 2009/103 is not to harmonise the legal conditions of validity of insurance contracts. Although the Member States remain free to determine those conditions, they must exercise their powers in a manner consistent with EU law, and the national provisions governing compensation for accidents resulting from the use of motor vehicles cannot deprive that directive of its effectiveness. 83. Thus, while Directive 2009/103 does not preclude a national provision which states that an insurance contract is null and void where it is concluded on the basis of false statements made by the policyholder, that directive does limit the effects of the nullity to the extent that it may undermine the effectiveness of that act of EU law. 84. In that regard, the enforceability of the nullity of an insurance contract against a passenger and victim who is the policyholder would mean that that person is not compensated and, therefore, would undermine the effectiveness of Directive 2009/103. That interpretation is not called into question by the possibility of that person being compensated by the FGAO. (b) Intervention by the body responsible for the compensation of victims 85. The referring court expresses doubts as to whether the fact that the FGAO is required to compensate the victim if the nullity of the contract is declared to be enforceable against that victim is such as to influence the interpretation to be adopted. 86. In that regard, under Article 10 of Directive 2009/103, each Member State is required to ‘set up or authorise a body with the task of providing compensation, at least up to the limits of the insurance obligation[,] for damage to property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in Article 3 has not been satisfied’. 87. However, as the Court has clarified (41), the finding that a national provision is liable to result in compensation not being paid to third-party victims and, consequently, in Directive 2009/103 being deprived of its effectiveness is not called into question by the fact that it is possible for the victim to receive compensation from a body set up in order to comply with Article 10 of that directive. 88. Provision was made for the intervention of such a body as a measure of last resort, solely in cases in which the damage and/or injury was caused by a vehicle for which the insurance obligation has not been satisfied. Insurance against civil liability in respect of the use of motor vehicles is compulsory and it is for the Member States to make sure that, subject to the derogations laid down in Directive 2009/103, any owner or keeper of a vehicle normally based in its territory concludes a contract with an insurance company. A Member State’s failure to comply with that monitoring obligation should not operate to the detriment of victims of road traffic accidents and, should it do so, the body set up or authorised by that Member State is to compensate the victims. However, the intervention by an authorised body cannot be relied upon to release the insurer from its liability where the obligation to conclude the insurance contract has been satisfied. 3. Conclusion in relation to the first part of the question referred 89. Further to my analysis above, it is my view, first of all, that the fact that the passenger and victim is the policyholder who made the false statements as to the identity of the usual driver when concluding the insurance contract in no way alters his status as a ‘third-party victim’ for the purposes of Directive 2009/103 or affects the protection afforded to persons with that status (42). Next, in the circumstances of the present case, the view cannot be taken that he can be refused that protection by applying the principle of prohibition of fraud and abuse (43). Lastly, that directive would be rendered ineffective if the insurer were to refuse that person the right to be compensated because the nullity of the insurance contract is enforceable as a result of those false statements (44). 90. In those circumstances, the first part of the question referred for a preliminary ruling should be answered to the effect that Articles 3 and 13 of Directive 2009/103 must be interpreted as precluding national legislation under which the nullity of a contract of insurance against civil liability in respect of motor vehicles, as a result of an intentional false statement made by the policyholder as regards the usual driver of the vehicle concerned, is enforceable against a passenger and victim, where that person is also the policyholder. C. The right to bring an action for recovery 91. As a reminder, the second part of the question referred for a preliminary ruling concerns whether Articles 3 and 13 of Directive 2009/103 are to be interpreted as likewise precluding national legislation which authorises the insurer to bring an action against the passenger and victim, where that person is also the policyholder, based on the intentional false statement made by the latter regarding the usual driver of the vehicle concerned, in order to recover all sums paid to that passenger and victim in performance of that contract. 92. To answer the second part of the question referred for a preliminary ruling, I will begin by examining whether the conditions for the policyholder to incur liability for the initial false statements are governed by EU law. If that is not the case, I will then consider whether EU law nevertheless precludes the liability of that policyholder from being incurred by means of an action for recovery brought by the insurer. 1. The conditions for the liability of the policyholder 93. Although the Court has not yet had occasion to rule on the compliance with EU law of the right of an insurer to bring an action for recovery against a passenger and victim where that person is also the policyholder and the person who made the false statements when the insurance contract was concluded, useful guidance in that regard can be found in case-law (45). 94. An action for recovery brought against a person injured following an accident was at issue in the judgment in Churchill Insurance Company and Evans (46). 95. That judgment concerned a provision of national law which allowed the insurer to recover from the insured the amount paid in respect of that insurer’s liability arising from the insurance contract. It is clear from reading the judgment that that provision was open to two different interpretations and that those interpretations had been the subject of debate between the parties. 96. According to the first interpretation, the national provision at issue provided for an action against the insured for recovery of that compensation when that insured had caused the accident or permitted the use of the vehicle by the driver who caused the accident (47). Under the second interpretation, that provision had the effect of excluding automatically from the benefit of insurance a passenger, the victim of a road traffic accident, who was insured to drive the vehicle and who had given permission to an uninsured driver to drive (48). The referring court adopted that second interpretation and, consequently, that interpretation is reflected in the judgment given by the Court. 97. Even more significantly, a reading of that judgment may suggest that a provision which automatically excludes the benefit of compensation possibly due to the insured (second interpretation) falls within the scope of Directive 2009/103, whereas a provision which affords the insurer the right to hold its contracting party civilly liable by an action for recovery (first interpretation) falls outside the scope of that directive. 98. Indeed, after stating that it was required to take account of the referring court’s interpretation of the national law, that is to say, the second interpretation, the Court stated that the questions referred for a preliminary ruling ‘[did] not concern the compatibility with EU law of a rule governing civil liability, but concern[ed] rather the compatibility with EU law of a provision which, according to the interpretation given by the referring court, by excluding automatically the benefit of compensation possibly due to an insured, limits the extent of civil liability insurance cover’ (49). The Court thus took the view that the questions submitted did indeed therefore fall within the scope of the related EU rules. 99. That reading of the judgment in Churchill Insurance Company and Evans (50) is supported by the order in BUL INS (51), in which the Court stated that Article 13 of Directive 2009/103 is concerned with possible limitations on civil liability insurance cover in respect of the third-party victims of an accident, and not actions for recovery brought by the insurer after damages have been awarded to the injured person. 100. Thus, the conditions for the policyholder incurring liability vis-a-vis the amounts paid by the insurer following an accident are not governed by EU law. It remains to be determined whether the conditions for that person incurring such liability, to which the second part of the question referred for a preliminary ruling refers, are nevertheless capable of undermining the effectiveness of Directive 2009/103. 2. The effectiveness of Directive 2009/103 and actions for recovery 101. The referring court asks whether an insurer may bring an action against a policyholder in order to recover all sums paid to that policyholder in performance of the insurance contract. 102. Although the conditions for the policyholder incurring liability fall within the competence of the Member States, the latter must exercise their powers in that field in a manner consistent with EU law and without undermining the effectiveness of EU law. 103. In that regard, in its case-law on the effectiveness of Directive 2009/103, the Court draws a distinction between, on the one hand, the provisions on insurance which limit the cover against civil liability provided by the insurer in the relationship between a third-party victim and the insurer and, on the other hand, the provisions of the national civil liability rules which determine the insured’s liability in respect of such a third-party victim. (52) In principle, it is primarily the former provisions which are capable of undermining the effectiveness of that directive. (53) As a general rule, the liability of the insurer stems from the civil liability borne by the insured, and the Directive does not seek to harmonise the rules on such civil liability in the Member States. 104. Furthermore, in accordance with the same case-law, in order to ensure the effectiveness of provisions of EU law relating to compulsory insurance against civil liability in respect of the use of motor vehicles, those provisions must be interpreted as meaning that they preclude national legislation which undermines that effectiveness, in that, by automatically excluding or disproportionately limiting the victim’s right to compensation by compulsory insurance against civil liability in respect of the use of motor vehicles, it impedes the achievement of the objective of protecting victims of road traffic accidents, which has continuously been pursued and reinforced by the EU legislature (54). 105. In the light of that case-law, it should be stated that national legislation which authorises the insurer to bring an action against a passenger and victim, where that person is also the policyholder and the person who made the false statements when the insurance contract was concluded, in order to obtain reimbursement of all sums paid to that passenger and victim in performance of the insurance contract, may affect that individual’s right to be compensated by compulsory insurance against civil liability in respect of motor vehicles and, therefore, undermine the effectiveness of Directive 2009/103. 106. Such national legislation has the effect of influencing the relationship between the third-party victim and the insurer, without influencing the civil liability of the insured who is directly responsible for the road traffic accident. The fact that that national legislation seeks to penalise the false statements made by the policyholder when concluding the insurance contract does not call that consideration into question. The fact that the passenger and victim is the policyholder who made the false statements as regards the identity of the usual driver when concluding the insurance contract has no effect on his or her status as a ‘third-party victim’ for the purposes of Directive 2009/103 (55). 107. In that regard, it is indeed true that, in the judgment in Ruiz Bernáldez (56), the Court took the view that ‘[a compulsory insurance contract] may … provide that in such cases the insurer is to have a right of recovery against the insured’. However, that judgment cannot be understood to mean that EU law does not preclude the insurer from being able to bring an action for recovery against the person with whom it concluded the insurance contract where that person is also a third-party victim for the purposes of Directive 2009/103. 108. As the French Government observes, in the judgment in Ruiz Bernáldez (57) the insured was the driver of the vehicle and the person who caused the damage, and therefore the question of the risk of infringement of the victim’s right to compensation as a result of that action did not arise. Furthermore, the Court’s considerations concerned, more specifically, a clause in the insurance contract which allowed the insurer to claim against the insured with a view to recovering the sums paid to the victim of a road traffic accident caused by an intoxicated driver. (58) However, nothing in that judgment suggests that such an action for recovery can be brought, without any restriction of EU law, against the person compensated by the insurer. On the contrary, the Court stated that ‘a compulsory insurance contract may not provide that in certain cases, in particular where the driver of the vehicle was intoxicated, the insurer is not obliged to pay compensation for the damage to property and personal injuries caused to third parties by the insured vehicle’ (59). 109. Even more significantly, an action for recovery such as that mentioned in the second part of the question referred for a preliminary ruling disregards the need to ensure the proportionality of a measure intended to deprive a victim of the right to obtain compensation from the insurer. 110. As is apparent from the order for reference, the nullity of the contract is the result of the false statements which altered the insurer’s opinion of the risk and, therefore, the cost of the insurance, without this having an impact on the accident or the extent of the losses and injuries. In addition, if an action is brought to obtain reimbursement of all sums paid to the person concerned as compensation for the loss or injury suffered in a road traffic accident, under the guise of penalising the false statements made by the policyholder as regards the identity of the usual driver of the vehicle concerned, that action has the result, in practice, of depriving that person, definitively and disproportionately, of the protection afforded by Directive 2009/103 to the victims of such accidents. 111. In those circumstances, the second part of the question referred for a preliminary ruling should be answered to the effect that Articles 3 and 13 of Directive 2009/103 must be interpreted as likewise precluding national legislation which authorises the insurer to bring an action against the passenger and victim, where that person is also the policyholder, based on the intentional false statement made by him or her as regards the usual driver of the vehicle concerned, in order to recover all sums paid to that passenger and victim in performance of that contract. V. Conclusion 112. In the light of all the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Cour de cassation (Court of Cassation, France) as follows: Articles 3 and 13 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 must be interpreted as: – precluding national legislation under which the nullity of a contract of insurance against civil liability in respect of motor vehicles, as a result of an intentional false statement made by the policyholder as regards the usual driver of the vehicle concerned, is enforceable against a passenger and victim, where that person is also the policyholder; – likewise precluding national legislation which authorises the insurer to bring an action against the passenger and victim, where that person is also the policyholder, based on the intentional false statement made by him or her as regards the usual driver of the vehicle concerned, in order to recover all sums paid to that passenger and victim in performance of that contract. 1 Original language: French. 2 Judgment of 20 July 2017 (C‑287/16, EU:C:2017:575). 3 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). 4 It should be noted that the identity of the persons falling into the category of victims, other than PQ, is not clearly stated in the order for reference. In the circumstances of the main proceedings, MAAF could be deemed to fall into that category, since it is apparent from the reference for a preliminary ruling that that company provided insurance cover to the second vehicle involved in the accident of 5 October 2012 (see paragraph 2 of the order for reference, which states that ‘the accident … also involved another vehicle insured by [MAAF]’). If MAAF paid compensation to a person injured in that accident, its participation in the proceedings would be explained by the fact that it subrogated that person’s rights and that it may rely on those rights against the person who caused the accident. 5 Whilst Article R. 211-13 of the Insurance Code is not reproduced in the request for a preliminary ruling, it does, however, appear in the European Commission’s written observations. In essence, that article refers to several instruments of insurance law which have the object of limiting the insurer’s liability, such as the excess, which cannot be enforced against victims or their successors. In addition, that article provides that, in cases relating to those instruments which are unenforceable against such persons, ‘the insurer is to pay the compensation on behalf of the person responsible’ and that ‘[the insurer] may bring against [the person responsible] an action for reimbursement of all sums which it has thus paid or set aside in his or her place’. 6 Judgment of the Cour de cassation (Court of Cassation) of 29 August 2019, Second Civil Chamber, Appeal No 18-14.768. 7 See, inter alia, judgment of 16 December 2008, Cartesio (C‑210/06, EU:C:2008:723, paragraph 67). 8 See, recently, order of 13 October 2021, Liberty Seguros (C‑375/20, EU:C:2021:861, paragraph 51 and the case-law cited; ‘the order in Liberty Seguros’). 9 See, by way of illustration, judgment of 14 December 2023, Sparkasse Südpfalz (C‑206/22, EU:C:2023:984, paragraphs 19 to 24). 10 See, to that effect, judgment of 20 July 2017, Fidelidade-Companhia de Seguros (C‑287/16, EU:C:2017:575, paragraph 31), and the order in Liberty Seguros (paragraph 64). 11 See, to that effect, judgment of 20 July 2017, Fidelidade-Companhia de Seguros (C‑287/16, EU:C:2017:575, paragraph 32), and the order in Liberty Seguros (paragraph 65). 12 See, recently, judgment of 12 October 2023, KBC Verzekeringen (C‑286/22, EU:C:2023:767, paragraph 39 and the case-law cited). 13 See, recently, the order in Liberty Seguros (paragraph 56). See also judgment of the EFTA Court of 14 June 2001, Helgadóttir (E-7/00, EFTA Court Report 2000-2001, paragraph 30). 14 See, to that effect, judgment of 10 June 2021, Van Ameyde España (C‑923/19, EU:C:2021:475, paragraph 23). 15 See, to that effect, the order in Liberty Seguros (paragraph 62). 16 See, to that effect, judgments of 24 October 2013, Drozdovs (C‑277/12, EU:C:2013:685, paragraph 42); of 15 December 2022, HUK-COBURG-Allgemeine Versicherung (C‑577/21, EU:C:2022:992, paragraph 41); and of 10 June 2021, Van Ameyde España (C‑923/19, EU:C:2021:475, paragraph 42). 17 See, to that effect, the order in Liberty Seguros (paragraph 59 and the case-law cited). 18 See judgment of 30 June 2005, Candolin and Others (C‑537/03, EU:C:2005:417, paragraphs 27, 32 and 33). 19 See point 41 of this Opinion. 20 See Opinion of Advocate General Mengozzi in Churchill Insurance Company and Evans (C‑442/10, EU:C:2011:548, point 23). 21 See judgment of 14 September 2017, Delgado Mendes (C‑503/16, EU:C:2017:681, paragraph 44). 22 See point 45 of this Opinion. 23 See, to that effect, judgment of 20 July 2017, Fidelidade-Companhia de Seguros (C‑287/16, EU:C:2017:575, paragraph 27). 24 See the order in Liberty Seguros (paragraph 70). 25 On this distinction, described in virtually identical terms to those used in that passage, see Opinion of Advocate General Poiares Maduro in Halifax and Others (C‑255/02, EU:C:2005:200, point 63). 26 See, to that effect, judgment of 28 July 2016, Kratzer (C‑423/15, EU:C:2016:604, paragraph 42). 27 See judgment of 26 February 2019, N Luxembourg 1 and Others (C‑115/16, C‑118/16, C‑119/16 and C‑299/16, EU:C:2019:134, paragraph 126). 28 See, recently, judgment of 21 December 2023, BMW Bank and Others (C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 285). 29 See, to that effect, Butler, G., and Sørensen, K.E., ‘The prohibition of abuse of EU law: A special general principle’, in Ziegler, K.S., Neuvonen, P.J., Moreno-Lax, V., Research Handbook on General Principles in EU law, Edward Elgar Publishing, Cheltenham – Northampton, 2022, p. 415. 30 See point 43 of this Opinion. 31 See, to that effect, judgment of 15 November 2018, BTA Baltic Insurance Company (C‑648/17, EU:C:2018:917, paragraph 46). 32 See, recently, judgment of 21 December 2023, BMW Bank and Others (C‑38/21, C‑47/21 and C‑232/21, EU:C:2023:1014, paragraph 285). 33 See, to that effect, judgment of 28 July 2016, Kratzer (C‑423/15, EU:C:2016:604, paragraph 40). 34 See, to that effect, judgments of 6 April 2006, Agip Petroli (C‑456/04, EU:C:2006:241, paragraph 23), and of 8 June 2017, Vinyls Italia (C‑54/16, EU:C:2017:433, paragraph 52). 35 See, to that effect, judgment of 13 March 2014, SICES and Others (C‑155/13, EU:C:2014:145, paragraph 34). 36 See, to that effect, judgments of 6 February 2018, Altun and Others (C‑359/16, EU:C:2018:63, paragraph 56), and of 26 February 2019, T Danmark and Y Denmark (C‑116/16 and C‑117/16, EU:C:2019:135, paragraph 99). 37 See Szpunar, M., ‘Quelques remarques générales sur le concept de l’abus de droit en droit de l’Union’, The Court of Justice of the European Union under the presidency of Vassilios Skouris (2003-2015): Liber amicorum Vassilios Skouris, Bruylant, Brussels, 2015, pp. 623 to 632. 38 See, to that effect, judgment of 23 March 2000, Diamantis (C‑373/97, EU:C:2000:150, paragraph 34). 39 See, to that effect, judgment of 12 May 1998, Kefalas and Others (C‑367/96, EU:C:1998:222, paragraph 22). 40 See point 35 of this Opinion. 41 See, to that effect, judgment of 20 July 2017, Fidelidade-Companhia de Seguros (C‑287/16, EU:C:2017:575, paragraph 35), and the order in Liberty Seguros (paragraph 69). 42 See point 56 of this Opinion. 43 See point 77 of this Opinion. 44 See point 84 of this Opinion. 45 See also, to that effect, Pokrzywniak, J., ‘How far shall the protection of a traffic accident victim go under motor third party liability insurance?’, Wiadomości Ubezpieczeniowe, 2024, No 1, p. 31. 46 Judgment of 1 December 2011 (C‑442/10, EU:C:2011:799). 47 See judgment of 1 December 2011, Churchill Insurance Company and Evans (C‑442/10, EU:C:2011:799, paragraph 21). 48 See judgment of 1 December 2011, Churchill Insurance Company and Evans (C‑442/10, EU:C:2011:799, paragraphs 20 and 23). 49 See judgment of 1 December 2011, Churchill Insurance Company and Evans (C‑442/10, EU:C:2011:799, paragraph 24). 50 Judgment of 1 December 2011 (C‑442/10, EU:C:2011:799). 51 Order of 9 January 2024 (C‑387/23, EU:C:2024:2, paragraph 24). 52 See, to that effect, judgment of 23 October 2012, Marques Almeida (C‑300/10, EU:C:2012:656, paragraph 34). 53 However, it cannot be ruled out that, in certain exceptional cases, the provisions of the national civil liability rules can also undermine the effectiveness of Directive 2009/103. Indeed, the Court also appears to examine such national provisions from the perspective of their compliance with the effectiveness of that directive. See, by way of illustration, judgment of 15 December 2022, HUK-COBURG-Allgemeine Versicherung (C‑577/21, EU:C:2022:992, paragraphs 45 to 49). See also judgment of the EFTA Court of 14 June 2001, Helgadóttir (E-7/00, EFTA Court Report 2000-2001, paragraph 31). 54 See judgment of 10 June 2021, Van Ameyde España (C‑923/19, EU:C:2021:475, paragraph 44). 55 See point 89 of this Opinion. 56 Judgment of 28 March 1996 (C‑129/94, EU:C:1996:143, paragraph 24). 57 Judgment of 28 March 1996 (C‑129/94, EU:C:1996:143). 58 See judgment of 28 March 1996, Ruiz Bernáldez (C‑129/94, EU:C:1996:143, paragraph 23). 59 See judgment of 28 March 1996, Ruiz Bernáldez (C‑129/94, EU:C:1996:143, paragraph 24).