Opinion of the Advocate General — ECLI:EU:C:2019:1066
Date: 2019-12-11
Language of the case: Dutch
Subject matter: Right of establishment;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
25 October 2018 
Referring court: 
Grondwettelijk Hof (Belgium) 
Date of the decision to refer: 
11 October 2018 
Applicants: 
Orde van Vlaamse balies 
Ordre des barreaux francophones et germanophone 
Defendant: 
Ministerraad 
  
Subject matter of the action in the main proceedings 
The action in the main proceedings relates to the infringement of Articles 10 and 
11 of the Belgian Constitution) (principle of equality) on the ground that an 
insured person with legal expenses insurance does not have to be accorded the 
right freely to choose a lawyer in the event of mediation but does have to be 
accorded that right in the event of arbitration.  
Subject matter and legal basis of the request for a preliminary ruling 
The subject matter of the present referral under Article 267 TFEU concerns the 
interpretation of the term ‘inquiry or proceedings’ in Article 201(1)(a) of 
Directive 2009/138, under which the insured person is free to choose a lawyer.  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-667/18 
 
2  
Question referred 
Should the term ‘proceedings’ in Article 201(1)(a) of Directive 2009/138/EC of 
the European Parliament and of the Council of 25 November 2009 on the taking-
up and pursuit of the business of Insurance and Reinsurance be interpreted as 
including extrajudicial and judicial mediation proceedings, as provided for in 
Articles 1723/1 to 1737 of the Belgian Gerechtelijk Wetboek (Judicial Code)?   
Provisions of EU law cited 
Article 201(1)(a) of Directive 2009/138/EC of the European Parliament and of the 
Council of 25 November 2009 on the taking-up and pursuit of the business of 
Insurance and Reinsurance (Solvency II) [previously Article 4(1)(a) of Directive 
87/344].   
Article 198(1)(b) of Directive 2009/138/EC [previously Article 2(1), second 
indent, of Directive 87/344]. 
Directive 2008/52/EC of the European Parliament and of the Council of 21 May 
2008 on certain aspects of mediation in civil and commercial matters. 
Provisions of national law cited 
• Article 156(1) of the wet van 4 april 2014 betreffende de verzekeringen 
(Law of 4 April 2014 on insurance), as amended by the Law of 9 April 2017 
amending the Law of 4 April 2014 on insurance, which seeks to ensure the 
free choice of a lawyer or any other person who, under the law applicable to 
the procedure, has the necessary qualifications to defend his interests at 
every stage of the administration of justice in the context of a legal expenses 
insurance contract: 
‘Any insurance contract relating to legal expenses shall explicitly provide at least 
that:  
1° when it is necessary to proceed to judicial, administrative or arbitration 
proceedings, the insured person can freely choose a lawyer or any other person 
who, under the law applicable to the proceedings, has the necessary qualifications 
to defend, represent or serve his interests (...)’.  
• Article 10 of the Constitution: 
‘No class distinctions exist in the State. 
Belgians are equal before the law; they alone are eligible for civil and military 
service, save for the exceptions that may be created by law for particular cases.  
Equality between men and women is guaranteed.’ 
ORDE VAN VLAAMSE BALIES AND ORDRE DES BARREAUX FRANCOPHONES ET GERMANOPHONE 
 
3 
• Article 11 of the Constitution: 
‘Enjoyment of the rights and freedoms recognised for Belgians must be provided 
without discrimination. To this end, laws and secondary legislation shall 
guarantee, inter alia, the rights and freedoms of ideological and philosophical 
minorities.’ 
Brief summary of the facts and the procedure in the main proceedings 
1 Article 156(1) of the Law of 4 April 2014 was amended by the Law of 9 April 
2017. Prior to that amendment, that article provided that an insured person with 
legal expenses insurance was in any case free to choose a lawyer in the event of 
proceedings or an inquiry. By the Law of 9 April 2017, that freedom of choice 
was extended to arbitration proceedings, but not to mediation proceedings.  
2 The Orde van Vlaamse balies (Council of Flemish Bars) and the Ordre des 
barreaux francophones et germanophone (Council of French- and German-
language Bars) (‘the applicants’) brought an action seeking annulment of the wet 
van 9 april 2017. The Grondwettelijk Hof (Belgian Constitutional Court) points 
out that it can annul only provisions against which pleas in law have been 
explicitly raised or which are inextricably linked to the provisions to be annulled. 
Although the applicants by their action are seeking the annulment of the entire 
Law of 9 April 2017, they are raising pleas against the amendment of Article 
156(1) of the Law of 4 April 2014 only in so far as it relates to the extension of 
the free choice of legal counsel to arbitration proceedings, but not to mediation 
proceedings. The Grondwettelijk Hof therefore declares the action for annulment 
admissible only to that extent. 
3 The legal assistance insurer who is requested to assist in resolving a conflict can 
provide legal services in the first place by endeavouring to reach an amicable 
solution to a dispute independently of any procedure. If that does not succeed, 
then, depending on the nature of the dispute, judicial, administrative, arbitration or 
mediation proceedings may be started.  
4 Mediation is regulated by Articles 1723/1 to 1737 of the Gerechtelijk Wetboek 
(Belgian Judicial Code). It is an alternative way of resolving conflicts between 
two or more persons whereby the parties agree to end the dispute by means of a 
mediation agreement which they draw up under the guidance of a mediator. 
5 In contrast to mediation proceedings, which seek to reach an agreement between 
the parties, arbitration proceedings, like judicial proceedings and administrative 
proceedings, lead to a decision by a third party. According to Article 1710 of the 
Gerechtelijk Wetboek, in arbitration proceedings the arbitration tribunal makes a 
decision in principle on the basis of the legal rules that the parties declare 
applicable to the dispute. However, that Wetboek does not contain any reference 
to legal rules which must be applied in mediation proceedings. The parties have 
total freedom when conducting mediation, which therefore does not necessarily 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-667/18 
 
4  
have a legal basis. However, a mediation agreement may be approved by a 
competent court, the approval order having the effects of a judicial decision within 
the meaning of Article 1043 of the Gerechtelijk Wetboek. 
6 The Gerechtelijk Wetboek provides for two forms of mediation: extrajudicial 
mediation (Articles 1730 to 1733) and judicial mediation (Articles 1734 to 1737). 
Under the first form, the parties try to reach an agreement before the case is 
brought before a court. Under the second form, the case is already pending before 
a court, but the court considers it advisable to order mediation, whether or not at 
the request of the parties, before considering the case.  
Principal submissions of the parties to the main proceedings 
7 The applicants raise two pleas in law, both of which concern infringement of 
Articles 10 and 11 of the Constitution, which provide for the right to equal 
treatment and the prohibition of discrimination. In the first plea, they claim that 
those provisions are infringed by the fact that the contested provision creates a 
difference in treatment between, on the one hand, the person seeking justice who 
makes use of arbitration proceedings for the resolution of a dispute and, in the 
context of legal expenses insurance, is free to choose legal counsel and, on the 
other hand, the person seeking justice who uses mediation proceedings in that 
context and who does not have that freedom of choice.  
8 The second plea also relates to the infringement of Articles 10 and 11 of the 
Constitution, but then read in conjunction with Article 201(1)(a) of Directive 
2009/138. The request for a preliminary ruling therefore concerns the 
interpretation of the term ‘proceedings’ in that article in the light of a possible 
infringement of equal treatment to which it might give rise.    
9 The similarities and differences between mediation and arbitration put forward by 
the parties in the context of the first plea are also relevant to the second plea to 
which the question referred relates. According to the applicants, both procedures 
are intended to settle a dispute without recourse to legal proceedings. They also 
point out that the court can simply approve the agreement at the request of one of 
the parties. This may be refused only if the agreement is contrary to public policy 
or to the interests of minors.  
10 The Ministerraad (Council of Ministers) points out that an arbitrator has judicial 
powers and definitively settles the dispute. In the event of mediation, on the other 
hand, the parties can always withdraw. Moreover, a mediation agreement is 
intended only to bring parties closer to each other and is not enforceable. In view 
of that difference, the legislature could decide to guarantee the free choice of a 
lawyer in the case of arbitration only. In the event of court approval, the person 
seeking justice would have the right to free choice of legal counsel, whose costs 
would be covered by the legal expenses insurance.  
ORDE VAN VLAAMSE BALIES AND ORDRE DES BARREAUX FRANCOPHONES ET GERMANOPHONE 
 
5 
11 In the context of the second plea, the applicants submit that voluntary mediation is 
to be regarded as part of legal proceedings precisely because of this possibility of 
court approval, and at least as a preliminary stage thereof. Moreover, they deduce 
from Directive 2008/52/EC of the European Parliament and of the Council of 
21 May 2008 on certain aspects of mediation in civil and commercial matters that, 
so far as court approval is concerned, the European legislature wishes to place 
mediation proceedings on a perfectly equal footing with classic legal proceedings. 
12 Furthermore, the applicants refer to two judgments of the Court of Justice, both of 
7 April 2016 (Büyüktipi, C-5/15, EU:C:2016:218, and Massar, C-460/14, 
EU:C:2016:216), which show that the term ‘inquiry’ in Article 201(1)(a) of 
Directive 2009/138 covers both the preparatory stage (the objection stage) and the 
decision-making stage of legal proceedings that take place before a court in the 
strict sense. The applicants maintain that this approach should also apply to the 
term ‘proceedings’. The mediation proceedings leading to a court-approved 
agreement can then be interpreted as the preparatory stage.  
13 The applicants also refer to Article 198 of Directive 2009/138, which concerns the 
‘scope’ of Section 4 (‘Legal expenses insurance’) of the Directive. From the 
words used in paragraph 1(b) of that article, ‘defending or representing the insured 
person in civil, criminal, administrative or other proceedings or in respect of any 
claim made against that person’, they deduce that the term ‘proceedings’ should 
be construed broadly. Finally, a broad interpretation of that term would also be 
supported by the English-language version of Article 201(1)(a) of Directive 
2009/138, which uses the words ‘in any inquiry or proceedings’.    
14 According to the Ministerraad, there is no case-law of the Court of Justice which 
shows that alternative dispute resolution, such as mediation, comes within the 
scope of Article 201(1)(a). In its arguments against the second plea, it reiterates, 
as in the first plea, that this dispute settlement differs from (judicial) proceedings. 
In the event of possible court approval, the parties will have first reached an 
agreement independently of the court. It cannot therefore be said that, in the event 
of court approval, the court decides unilaterally on the dispute. The parties resolve 
the dispute together and do not necessarily require a lawyer. It is only in the event 
of court approval that there is a legally binding agreement and thus the guarantee 
of the free choice of lawyer. Finally, according to the Ministerraad, judicial 
mediation and voluntary mediation have largely the same characteristics. The 
starting point is always the agreement of the parties and the voluntary nature of 
the mediation. In both forms, the mediator does not settle any disputes himself and 
therefore also does not impose a solution.   
Brief summary of the reasons for the referral 
15 The referring court states that the present Article 201(1)(a) of Directive 2009/138 
was adopted unchanged from the former Article 4(1) of Directive 87/344, in 
relation to which the Court of Justice delivered the judgment of 10 September 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-667/18 
 
6  
2009, Eschig, C-199/08, EU:C:2009:538. This shows that that article was intended 
to protect the interests of the insured person broadly by granting him a general and 
autonomous right freely to choose his legal assistance provider. However, that 
right is limited to ‘inquiries and proceedings’.  
16 In the same way as the applicants, the referring court then refers to the judgments 
of 7 April 2016 (Büyüktipi, C-5/15, EU:C:2016:218, and Massar, C-460/14, 
EU:C:2016:216), in which the Court of Justice ruled that the term ‘inquiry’ 
includes both the decision-making and preparatory stages of those procedures (see 
paragraph 19). Moreover, the Court of Justice points out in those judgments that 
the objective pursued by Article 4 of Directive 87/344 [the current Article 
201(1)(a) of Directive 2009/138] is to protect, broadly, the interests of insured 
persons. Therefore, the general scope and obligatory nature that the right of the 
insured party to choose a lawyer is recognised to possess militate against a 
restrictive interpretation of that article (see also the judgment of the Court of 
Justice of 7 November 2013, Sneller, C-442/12, EU:C:2013:717, paragraphs 24 
and 25). 
17 The cited judgment[s] of 7 April 2016 do indeed concern the term ‘inquiry’, but 
since, according to paragraph 19, no distinction is made between the preparatory 
stage and the decision-making stage of such a procedure, it could be inferred that 
the approach adopted there is also applicable to the term ‘proceedings’ in Article 
201(1)(a) of Directive 2009/138.  
18 What is clear is that the right freely to choose a lawyer does not apply if the 
parties try to resolve a dispute by means of an amicable settlement. On the basis of 
the abovementioned case-law, however, it is not possible to determine with 
certainty whether this also applies in mediation proceedings, as provided for in 
Articles 1723/1 to 1737 of the Gerechtelijk Wetboek. After all, mediation 
proceedings have the characteristics of both an amicable settlement of the dispute 
and of legal proceedings.  
19 Since mediation proceedings pursue the objective of a mediation agreement 
between the parties, they can be distinguished clearly from legal proceedings and 
appear more like an amicable settlement of the dispute. However, mediation 
proceedings differ in three respects from an amicable settlement: first, they follow 
generally from an amicable consultation and second, they are regulated in the 
Gerechtelijk Wetboek. Third, a mediation agreement that has been concluded 
under the direction of a recognised mediator can be approved by a competent 
court, whereby the approval order acquires the effects of a judicial decision within 
the meaning of Article 1043 of the Gerechtelijk Wetboek.  
20 In view of these doubts as to the interpretation of a provision of European law, the 
referring court is obliged to seek a preliminary ruling from the Court of Justice.