Judgment;Summary — ECLI:EU:C:2023:417
Date: 2023-05-17
Language of the case: Portuguese
Court formation: Ninth Chamber
Subject matter: Provisions governing the Institutions;Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary 
1. Given that the facts at issue involve a conflict of laws between two Member 
States of the European Union, the law applicable to civil (and commercial) non-
contractual liability, where an attack on life or physical integrity must be 
considered to be involved, will be determined, firstly, by the Rome II Regulation 
[Regulation (EC) No 864/2007 of 11 July 2007], in accordance with Article 1(l) 
EN 
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thereof, which is directly applicable in domestic law pursuant to Article 8(3) of 
the Constitution of the Portuguese Republic. 
2. The reference for a preliminary ruling is intended to attain the twofold 
objective of being an instrument guaranteeing the shared nature of the application 
of European Union law and the role of national courts as common courts of 
European Union law, with the aim of ensuring the legal equality of all European 
citizens. 
3. In view of the reasonable doubt concerning the application and interpretation 
of the legislative framework of the Rome II Regulation, which is of fundamental 
importance to the final outcome of the dispute between the parties, and, in 
particular, to the assessment of the subject matter of the appeal, a reference for a 
preliminary ruling to the Court of Justice of the European Union is necessary in 
order to prevent divergent interpretations of the Community law in question. 
4. It has therefore been decided to submit a request for a preliminary ruling to 
the Court of Justice of the European Union, worded as follows: Is the law 
applicable to the limitation rules for the right to claim compensation that of the 
place of the accident (Portuguese law), in accordance with Articles 4(l) and 15(h) 
of Regulation (EC) No 864/2007 of the European Parliament and of the Council 
of 11 July 2007, Rome II, or, if the injured party’s place is taken by subrogation, 
is the ‘law of the third person’ subrogee (French law) applicable in accordance 
with Article 19 of that Regulation? 
* 
The judges of the Seventh Division of the Court of Appeal, Lisbon decide: 
I. FACTS 
1. Application 
The Fonds de Garantie des Victimes des Actes de Terrorisme et d’Autres 
Infractions brought an action claiming payment, under the ordinary procedure, 
against Victoria Seguros, S.A., seeking an order that the defendant reimburse to 
the applicant the sum of EUR 229 480.73 (two hundred and twenty-nine thousand 
four hundred and eighty euros and seventy-three cents), plus late-payment interest 
calculated from the date of notification of the application. 
In that connection, the applicant submitted that, on 4 August 2010, at Alvor beach, 
[…], a French citizen, was hit by a boat steered by its owner, […], whose civil 
liability was insured by the defendant; the boat’s propeller struck the person 
concerned who was swimming and snorkelling in a place where boats were 
prohibited from operating and which was intended to be used exclusively for 
bathing and swimming; as a result, that person suffered serious bodily injuries and 
underwent a number of medical treatments. 
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The swimmer in question sued the Fonds de Garantie des Victimes des Actes de 
Terrorisme et d’Autres Infractions, in its capacity as the French body which 
covers, inter alia, compensation due for accidents, before the Court of First 
Instance, Lyon, claiming compensation for the damage suffered as a result of the 
accident of which he was the victim in Portugal. 
In those proceedings, the parties agreed compensation of EUR 229 480.73, which 
the applicant has already paid to the injured party. 
Accordingly, by this action, the applicant seeks an order that the defendant must 
reimburse to the applicant the abovementioned amount paid, arguing that 
Portuguese law should apply in relation to the accident and the obligation to pay 
compensation, and that French law should apply in relation to the rules on the 
limitation period and the calculation of time limits, as is apparent from Article 19 
of Regulation (EC) No 864/2007 of 11 July 2007. 
In its defence, the defendant, first, put forward a substantive plea that the claim is 
time-barred, and, second, as regards the merits, it denied many of the facts relating 
to the accident and claimed that the action should be dismissed . 
Thus, in summary, the defendant argued that Portuguese law applies, inter alia, to 
the matter of limitation, having regard to Article 45(1) of the Civil Code, and it 
raised that plea for the purposes stipulated in Article 498(1) of the Civil Code, in 
view of the fact that, on the date when the application was lodged – 29 November 
2016 – the applicant’s right to bring a claim had lapsed a long time ago; in other 
words, more than six years had passed since the date of the accident. 
In its defence in relation to the merits, the defendant merely acknowledged the 
occurrence of the accident and the existence of the marine insurance taken out 
with it by the owner of the boat involved, but not the specific circumstances in 
which that accident occurred, and it relied on facts aimed at establishing that the 
swimmer alone was at fault, inter alia, because he was swimming beyond the 
buoys used to mark the navigation channel and outside the permitted bathing area, 
more than 300 metres from the coast and without using a marker buoy; in any 
event, the defendant argued that the amount claimed is excessive. 
In reply to the plea raised, the applicant contested the admissibility of the plea that 
the claim is time-barred, arguing, in summary, that the limitation period had not 
expired under French law or under Portuguese law either, in accordance with 
Article 498(3) of the Civil Code, which lays down a 10-year limitation period for 
exercising the right to reimbursement; that period only started to run when the last 
compensation payment was made to the injured party, that is on 7 April 2014, the 
date of the final payment made by the applicant to the injured party. 
* 
[…] [procedural steps] 
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In the normal course of proceedings, the hearing was held and judgment was then 
given allowing the plea that the action was time-barred, dismissing the 
application, and finding that the defendant was not liable in respect of the claim 
brought against it. 
2. Appeal 
The applicant was dissatisfied and brought an appeal; its arguments end with the 
following submissions: 
(A) On the date on which the application was lodged, the applicant’s right to 
claim, by way of subrogation, the amount that it had paid to the injured party was 
not time-barred. (B) The applicant’s right by way of subrogation arose only after it 
had paid the compensation the reimbursement of which is claimed in this action. 
(C) In accordance with Article 9 of Regulation (EC) No 864/2007 of the European 
Parliament and of the Council of 11 July 2007, French law is the law applicable to 
this case in the event of subrogation. (D) French law stipulates that the limitation 
period in the event of subrogation of the Fonds de Garantie des Victimes des 
Actes de Terrorisme et d’Autres Infractions runs from the date of the judgement, 
which was given on 20 March 2014. (E) Nevertheless, only after 10 years have 
passed […]. [reference to the arguments] (F) Then, pursuant to French law, on the 
date the application was lodged, the applicant’s claim was not time-barred. 
However, and without admitting facts that are detrimental to it, (G) if it is 
accepted that the solution is that laid down in Portuguese law, in accordance with 
Article 498(l) and (2) of the Civil Code, the limitation period starts to run only 
from the date of the payment or payments of compensation to the injured party. In 
fact, (H) no subrogation occurred before that payment. (I) Before paying the 
amount of EUR 229 480.73, the appellant was not even able to bring the action, 
since no subrogation existed in relation to future payments, that is to say, 
payments which were not due. Thus, (J) under Article 498(2) of the [Civil Code], 
counting from the date of the last payment (7 April 2014), the limitation period 
would only end on 7 April [2017], 1 much later than the date on which the 
application was lodged and notified to the defendant. (K) In that connection, the 
applicant relies on the judgments cited in paragraph 51 of these arguments, in 
particular, judgment No 2/2018 which was intended to ensure the uniformity of 
the case-law of the STA (Supreme Administrative Court, Portugal) […] which 
gave a contrary ruling to that under appeal. (L) On those grounds, owing to an 
error of interpretation and of non-application, the […] lower court breached the 
law referred to in the arguments and in these submissions. Therefore, (M) the 
judgment under appeal must be quashed and the submissions put forward herein 
accepted. Furthermore, (N) the appellant’s right to be reimbursed by the defendant 
was not time-barred on the date on which the application was lodged. And, (O) on 
the facts, as established and not established, the defendant must be ordered to pay 
the amount claimed, plus the relevant late-payment interest, all in accordance with 
 
1 Due to a typing error, it states 7 April 2014 when it certainly means 7 April 2017, further to 
what was stated above. 
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the considerations set out in the application. It is fair that the judgment under 
appeal should be quashed in line with the arguments set out herein. 
In its response to the appeal, the respondent rejected the appellant’s arguments, 
repeating that the right claimed is time-barred and arguing, in summary, that the 
judgment absolving it of liability is well-founded and should be confirmed. 
* 
The appeal was ruled admissible with devolutive effect. 
[…] [procedural steps] 
3. Subject matter of the appeal 
The scope of the appeal is delimited by the appellant’s submissions and it is 
necessary to rule on the issues raised therein […]. [procedural steps] 
Once the appellant’s claims have been examined, it will be necessary to decide 
whether, in the situation at issue, French law is applicable, in accordance 
with which the limitation period for the right claimed has not expired, or 
[whether], in the alternative, if it is decided to apply Portuguese law, the right 
has not lapsed either, in view of the date of the last payment to the injured 
party. 
This is a decisive point which gives rise to discussion of the following 
questions raised in the appeal: 
• The national law applicable pursuant to Regulation (EC) No 864/2007 of the 
European Parliament and of the Council of 11 July 2007, Rome II, which governs 
non-contractual obligations between citizens of Member States, and the conflict 
rule laid down in Article 45 of the Civil Code. 
• The interpretation and application of Articles 4(l) and 15(h); the 
applicant’s position whereby it has been subrogated to the injured 
party’s rights and the scope of Article 19 of the Rome II Regulation; 
the general rule of lex loci damni and the special rule governing the 
subrogee to the injured party’s rights; 
• The objective and subjective scope of Article 498(2) of the Civil 
Code, the legal nature of the right claimed in relation to the concept of 
subrogation or the concept of the right of redress; the academic and 
judicial interpretation of the provision; the day on which the limitation 
period starts to run for financial compensation paid by instalments. 
II. REASONING 
A. Facts 
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The lower court considered that the following facts have been established: 
(1) On 4 August 2010, at around 17:30, an accident occurred off Alvor beach 
(Algarve) between the boat […] steered by its owner, […], and the swimmer […], 
a French national […] [reference to the case file]. (2) While that boat was sailing 
in the area off Alvor beach […] its propeller struck the swimmer, (3) […] who 
was swimming using goggles, a snorkel and flippers. (4) That collision took place 
some 250 metres to the east in relation to the coastline, around 120/140 metres 
from land and on the surface of the water; (5) […] in an area where boats are 
prohibited from operating (6) […] and which is for use solely as a bathing and 
swimming area. (7) […] (8) The boat did not have any kind of navigational aid 
equipment (such as GPS or radar) on board. (9) As a direct result of his body 
being struck by the propeller, the swimmer suffered […] [detailed description of 
the bodily injuries suffered]. (10) […] [idem]; (12) Immediately after the accident, 
the swimmer was taken to the Hospital do Barlavento Algarvio. (13) He was then 
transferred by helicopter to the Hospital de São José in Lisbon, where he was 
operated on and was admitted from 4 to 9 August 2010 […] [reference to the case 
file]. (14) On 9 August 2010, he was transferred by plane to France, where he was 
admitted to hospital until 7 September 2010 [omissis] [idem]. (15) He also 
underwent a number of surgical operations […] [idem]. (16) Between 7 September 
and 11 November 2010, the accident victim was a patient at the Val de Rosay 
Functional Rehabilitation Centre; from 16 to 19 June 2011, also as a result of the 
accident described, he was admitted to the Park Clinic, where he had surgery […]; 
[description of the surgical operations] (17) He was completely incapacitated from 
4 August to 11 November 2010, from 16 to 19 June 2011 and on 14 February 
2012 […] [reference to the case file]. (18) He was incapacitated as to 60% from 
12 November 2010 to 2 January 2011 (19) and incapacitated as to 50% from 
3 January to 15 June 2011, from 20 June 2011 to 13 February 2012 and from 
15 February to 28 December 2012. (20) As a result of the accident described 
above, the victim […] [identification of the victim’s address] lodged a claim for 
compensation against the applicant (guarantee fund), which is the French body 
responsible for compensating accident victims in the first instance […] [reference 
to the case file]. (21) […] The proceedings were conducted in the Court of First 
Instance, Lyon […] [idem]. (22) In those court proceedings, the victim and the 
applicant in these proceedings agreed compensation in the total amount of 
EUR 229 480.73 […] [idem]. (23) In that agreement, signed on 3 March 2014 and 
approved by the court on 20 March 2014, both parties agreed that the 
consequences of the accident were as determined by the medical report drawn up 
by the expert […] […] [identification of the expert]. (24) Compensation was set 
for the reparation of all damage resulting from the accident concerned and it 
corresponds to the sum of the following items […] [reference to the case file]: – 
Miscellaneous expenses: EUR 2 028.78. – Consolidation care based on an hourly 
cost of EUR 13.00: EUR 10 640.50. – Costs of adapted vehicle: EUR 5 826.11. – 
Living support: EUR 76 153.24. – Total temporary discomfort based on an hourly 
cost of EUR 25.00: EUR 2 415.00. – Partial temporary discomfort 60%: 
EUR 717.60. – Partial temporary discomfort 50%: EUR 8 199.50; – Non-material 
damage: EUR 22 000.00. – Temporary disfigurement: EUR 3 000.00. – 
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Permanent functional deficiency (45%): EUR 76 500.00. – Permanent 
disfigurement: EUR 7 000.00 euros. – Damage affecting social integration and 
personal fulfilment: EUR 15 000.00. (25) The applicant in these proceedings paid 
the accident victim […] the total amount mentioned in respect of the damage 
suffered of EUR 229 480.73, by cheques dated 15 February 2013 
(EUR 10 000.00) and 7 April 2014 (EUR 219 480.73), […] [reference to the case 
file]. (26) This legal action was brought on 28 November 2016, and the defendant 
was notified of it on 12 December 2016 […] [idem]. (27) The owner […] 
concluded with the defendant in these proceedings a marine insurance contract 
under the class of ‘pleasure boats’ to insure the boat identified above […] and that 
insurance includes civil liability cover with an insured capital amount of 
EUR 250 000.00 […] [identification of the policy]. (28) On 12 August 2014, the 
defendant filed a defence to the claim which had been lodged by the applicant’s 
representative on 31 July 2014, contesting the claim and arguing that it was time-
barred and also that the accident was the sole fault of the injured swimmer […] 
[reference to the case file]. (29) The criminal proceedings instituted at the request 
of the Public Prosecutor’s Office following the accident were discontinued by the 
Tribunal Judicial de Portimão (Juiz de Instrução Criminal) (Court of Preliminary 
Investigations, Portimão (Portugal)) on 28 November 2012 […] [idem]. (30) […] 
Following the request to open the preliminary investigation, that court, on the 
basis that exercise of the right to bring a claim had expired and that therefore the 
Public Prosecutor’s Office had no standing to bring the criminal action, stayed the 
criminal proceedings instituted against the person under investigation […] and 
ordered that the case be removed from the register, which was notified on 
3 December 2012 […] [idem]. (31) Those proceedings were assigned the number 
37/10.1MAPTM and the Public Prosecutor’s Office charged the accused with the 
offence of causing injury through negligence, (32) […] by an indictment dated 
30 May 2012. (33) The day after the accident, […] [the insured] gave the 
Portimão Maritime Police a written report about the accident, dated 5 August 
2010 and signed by himself, according to which, inter alia, the insured could not 
have avoided the accident because not only was the French swimmer underwater 
but he was also in an area prohibited to swimmers and for the exclusive use of 
boats […] [idem]. (34) After the accident, the defendant requested the assistance 
of the undertaking Peritotal – Sociedade de Peritagens e Avaliações, S.A., whose 
expert […] prepared a documented report […] [reference to the case file and 
identification of the witness]. (35) In the performance of his duties, that expert 
carried out a number of enquiries, identified in the report he submitted, and took a 
written statement from the witness […] on 10 January 2011 […] [reference to the 
case file and identification of the witness]. (36) Later, on 31 January 2011, the 
same expert took a written statement from the witness […] [reference to the case 
file and identification of the witness]. (37) According to the account given by the 
expert, ‘it was established’ that the French swimmer was, at the time of the 
accident, beyond the buoys which marked the navigation channel; that the 
accident occurred when the swimmer was swimming outside the usual bathing 
area, that is, outside the bathing area and in an area (more than 300 metres) away 
from the coast, in a place where the boat could sail. (38) The expert also stated 
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that, at the time of the accident, the French swimmer was using a diver’s mask, a 
snorkel and flippers […]. (39) […] [reproduction of a written statement from a 
witness including a number of details about the accident] 
And it has not been established that: I. The French swimmer, who was 
snorkelling, only became visible when he emerged and he had not given any 
warning signal before the accident in question occurred. II. Immediately after the 
accident occurred, the insured […] provided all the help he could to the French 
swimmer. III. The collision occurred when the boat in question […] was a long 
way from the coast and in an area for the exclusive use of boats. IV. At the time of 
the crash, the French swimmer was beyond the buoys which marked the 
navigation channel. V. The collision occurred when the swimmer was swimming 
outside the usual bathing area, that is, in an area more than 300 metres away from 
the coast (the beach), VI. […] where that boat could sail without restrictions. 
B. The merits of the appeal 
1. Synopsis of the dispute 
After the accident which happened at Alvor beach on 4 August 2010, involving a 
swimmer, who is a French citizen, and a Portuguese boat, insured by the 
defendant, the applicant, a body recognised under French law for that purpose, 
paid the victim the total sum of EUR 229 480.73 as compensation for the damage 
suffered as a result of the accident. 
Claiming that the accident was the sole fault of the captain of the boat, the 
applicant has now brought a civil liability claim against the defendant on the 
grounds of an unlawful act by the insured, seeking reimbursement of the sum it 
paid to the accident victim under French law, which it submits is applicable 
pursuant to Article 19 of Regulation (EC) No 864/2007 of the European 
Parliament and of the Council of 11 July 2007, Rome II. 
The defendant, while acknowledging that the accident in question took place and 
that the marine insurance taken out by the owner of the boat exists, contested from 
the outset 2 the claim for payment brought by the applicant, on the ground that the 
right of subrogation had lapsed under Article 498(1) of the Portuguese Civil Code, 
which is applicable to the situation at issue in this case in accordance with 
Article 45 of the Civil Code. 
While still disagreeing with the application of Portuguese law, the applicant 
responded that, in the light of Article 4[9]8(3) of the Civil Code, the limitation 
period running from the date of the last payment to the injured party has not 
expired either. 
 
2 In so far as is important for the present purposes, the plea raised that the civil court lacked 
jurisdiction was upheld and the maritime court was ruled to have jurisdiction to hear the case. 
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In the judgment, the lower court, on the basis of the established facts, found that 
the plea that the right claimed by the applicant had lapsed should be upheld, in 
accordance with Article 498(l) of the Portuguese Civil Code, and it ruled that the 
defendant was not liable. 
At issue in the appeal is the upheld plea, which leads to lapse of the right claimed 
and the factual conditions for which are not in dispute; accordingly, the 
appellant’s claim is confined strictly to the alleged error of law in the judgment. 
2. Applicable national law 
The situation adjudicated on by the national courts is cross-border in nature and is 
based on a complex cause of action relating to civil liability for an unlawful act; 
specifically, Portugal is the location of the accident, the boat and the boat owner 
allegedly responsible for the accident; the victim is of French nationality and 
resides in France; the applicant is a body created and governed in accordance with 
French law, which is suing the boat owner’s insurer, having taken the victim’s 
place by subrogation and having paid the victim compensation for the damage 
suffered. 
When the lower court examined that preliminary issue, it found, in summary, that 
Portuguese law was applicable to the resolution of the dispute, especially in view 
of the nature of the right claimed by the applicant and the rules governing the 
limitation period. Applying Portuguese law, the lower court held that it had been 
established that the right claimed was time-barred because more than three years 
had passed since the date of the accident, in accordance with Article 498(1) of the 
Civil Code, and, since the applicant has been subrogated to the injured party’s 
right to compensation for the damage suffered, it does not qualify for the new 
limitation period relating to the insurer’s right of redress, laid down in 
Article 498(2); the lower court also held that the applicant cannot rely on the 
longer limitation period for the criminal proceedings relating to the unlawful act, 
laid down by Article 498(3), since the injured party did not institute the criminal 
proceedings and nor did he bring a separate civil action. 
The appellant, which does not dispute the assertion that it is litigating in its 
capacity as subrogee to the injured party’s claim against the defendant, the insurer 
of the boat, contends, on the contrary, that French law is applicable to the situation 
at issue, relying on Article 19 of the Rome II Regulation. 
The appellant thus argues that, in accordance with French law, in particular, 
Article 706.11 of the French Code of Criminal Procedure, Article L-422.1 of the 
Code des Assurances (Insurance Code) and Article 2270 of the French Civil Code, 
the limitation period for exercising the right to reimbursement of the 
compensation which it paid to the injured party has not expired, from which it 
follows that the judgment under appeal must be set aside. 
Quid juris? 
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The facts involve a conflict of laws between two Member States of the European 
Union, which is why the law applicable to civil (and commercial) non-contractual 
liability, which must be taken to include damage to life and physical integrity, will 
be determined, first, by the Rome II Regulation [Regulation (EC) No 864/2007 of 
11 July 2007], in accordance with Article 1(1) thereof, 3 which is directly 
applicable in domestic law pursuant to Article 8(3) of the Constitution of the 
Portuguese Republic. 
The solution adopted by the Portuguese domestic conflict-of-law rules is not, in 
principle, applicable to supranational conflict-of-law rules. 
While it is acknowledged that there is some dispute among legal commentators 
regarding preliminary issues of private international law, for example, about the 
matter of whether or not the Rome II Regulation requires a subordinate 
connection, to the detriment of the autonomous connection through the conflict 
rules of the lex fori, that is not relevant for the purposes of the decision in this 
case. 4 
As regards the freedom to choose the law, enshrined in Article 14 of the Rome II 
Regulation, that is not possible either in the present case because, since the 
unlawful act/accident happened on Portuguese territory, Article 4(1), (2) and (3) 
of the Portuguese Civil Code provide that Portuguese law is applicable. 
Likewise, the dispute cannot be resolved by applying the ‘most favourable law’ 
solution, since it is clear that this case does not involve a direct action brought by 
the accident victim against the insurer, as provided for in Article 18 of the 
regulation, which should be based on the interpretation of the law applicable to the 
prevalence of the predominant systematic element of the protection of the injured 
party; that is, the principle of the law most favourable to the relevant protection 
against the insurer. 5 
As Moutinho de Almeida explains in a commentary on the Rome II Regulation, 
the ‘ways in which obligations may be extinguished are the appropriate fulfilment 
and compensation or the death of the person liable and, as regards the limitation 
period and the expiry of that period, it is important to observe that the principle of 
the most favourable law is not applicable.’ 6 
Lastly, Portuguese law provides for protection of the subrogee and the defendant 
accepts that the applicant has substantive locus standi to claim reimbursement of 
the amount it paid to the injured party in respect of the accident at Alvor beach, 
 
3 Assuming also that no other international convention to which France or Portugal is a party is 
applicable in relation to the subject matter at issue. 
4 […]. 
5 […]. 
6 In O Regulamento Roma II, 2107, [Ed.] Principia, p.164. 
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which allegedly occurred through the sole fault of the owner and crew of the boat 
involved, which was insured by the defendant. 
The defendant’s defence is based solely on the claim that the right to 
compensation has lapsed under Portuguese law. 
That said, as regards non-contractual obligations arising from liability based on an 
unlawful act or for risk, Article 4(1) of the Rome II Regulation lays down the 
general rule that the applicable law is the law of the country in which the damage 
occurs. 
Article 15(h) provides, in relation to the scope of the law applicable, that that law 
covers ‘the manner in which an obligation may be extinguished and rules of 
prescription and limitation, including rules relating to the commencement, 
interruption and suspension of a period of prescription or limitation.’ 
Since the accident from which the action arose took place in Portugal, that 
provision provides that Portuguese law should apply to the situation at issue, 
especially as regards the disputed assertion that the right claimed by the applicant 
has lapsed. 
In parallel, Article 19 of the Rome II Regulation, under the heading ‘Subrogation’, 
provides as follows: ‘Where a person (the creditor) has a non-contractual claim 
upon another (the debtor), and a third person has a duty to satisfy the creditor, or 
has in fact satisfied the creditor in discharge of that duty, the law which governs 
the third person's duty to satisfy the creditor shall determine whether, and the 
extent to which, the third person is entitled to exercise against the debtor the 
rights which the creditor had against the debtor under the law governing their 
relationship.’ 
Having set out the details of the issue, it is appropriate to ask whether the aim of 
Article 19 of the Rome II Regulation is to guarantee for a third person who has 
made a payment to the injured party the foreseeability that the law governing the 
(domestic) relationship between the subrogor and the subrogee will apply, and the 
extent to which that third party is entitled to exercise the right against the debtor 
and person liable in the non-contractual relationship for an unlawful act or for 
risk, that is, whether the law of the ‘third person’ limits its applicability to the 
definition of the conditions for the exercise of subrogation. Or whether the law of 
the third person who has taken the place of the injured party by subrogation will 
also be applicable to the rules governing lapse of the right, relied on by the insurer 
of the person who caused the damage, and taking precedence in this regard over 
the provision contained in Article 15(h) and Article 4(1) of the Rome II 
Regulation. 
To put it another way, it is necessary to determine whether Article 19 of the Rome 
II Regulation must be interpreted as meaning that, where the right of 
compensation for an unlawful act has been exercised by the person subrogated to 
the rights of the injured party, the applicant in this case, the national law of that 
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third person, who was not a party to the non-contractual relationship, in this case 
French law, is applicable, or whether that provision refers solely to the matter of 
the basis of and the conditions for subrogation and, as regards the limitation rules 
applicable to the right, the provisions of Article 15(h), ex vi Article 4(1), of that 
regulation continue to apply, since the case concerns not only the relationship 
between the ‘third person’ and the creditor but also, within the substantive limits 
of the exercise of the injured party’s right to compensation, the non-contractual 
relationship. 
In the light of that reasonable uncertainty concerning the interpretation and 
application of the legislative framework of the Rome II Regulation, with essential 
implications for the final outcome of the proceedings between the parties, and in 
particular for the examination of the subject matter of the appeal, it is necessary to 
submit a request for a preliminary ruling to the Court of Justice of the European 
Union in order to avoid any divergent interpretations of the Community law in 
question. 
3. Request for a preliminary ruling 
In accordance with Article 65(b) of the Treaty of Lisbon, the Community is 
required to adopt measures in the field of judicial cooperation in civil matters 
having cross-border implications, in particular, measures which promote the 
compatibility of the rules applicable in the Member States concerning conflict of 
laws and of jurisdiction. 
The reference for a preliminary ruling is intended to attain the twofold objective 
of being an instrument guaranteeing the shared nature of the application of 
European Union law and the role of national courts as common courts of 
European Union law, with the aim of ensuring the legal equality of all European 
citizens. 7 
It is important to note in that regard the provisions of the Statute of the Court of 
Justice of the European Union and the Rules of Procedure of the Court of Justice 
on those matters. 
In accordance with Article 19(3) of the Treaty of Lisbon, the Court of Justice of 
the European Union will give rulings […] [transcription of the article in question] 
And, pursuant to Article 267 of the Treaty on the Functioning of the European 
Union, ‘the Court of Justice of the European Union shall have jurisdiction to give 
preliminary rulings concerning: … (b) the validity and interpretation of acts of the 
institutions, bodies, offices or agencies of the Union;’ furthermore, ‘where such a 
question is raised before any court or tribunal of a Member State, that court or 
tribunal may, if it considers that a decision on the question is necessary to enable 
it to give judgment, request the Court to give a ruling thereon.’ 
 
7 […]. 
FONDS DE GARANTIE DES VICTIMES DES ACTES DE TERRORISME ET D’AUTRES INFRACTIONS 
 
13 
The dispute in the present case concerns whether French national law or 
Portuguese national law should apply to the limitation period and to the date on 
which the right to compensation on grounds of civil liability for an unlawful act 
which occurred in Portugal lapses, where the victim and the subrogee who is suing 
the insurer are of French nationality. 
The Hague Programme, adopted by the European Council on 5 November 2004, 
urged the active pursuit of work on conflict-of-law rules regarding non-contractual 
obligations (Rome II). 8 
In the specific situation before the Portuguese court, there is a dispute concerning 
the application of Article 19, in conjunction with Articles 4(1) and 15(h), of the 
Rome II Regulation, which determines whether Portuguese law or French law is 
to apply with regard to the rules on the limitation period for the right and the 
method of calculating that period, leading to different outcomes for the 
proceedings. 
Moreover, having consulted the case-law of the national courts and that of the 
Court of Justice, the referring court takes the view that the complex nature of the 
examination of the issue in contention does not dispel the uncertainty which has 
arisen, and therefore the difficulty of interpretation of the provisions cited of the 
Rome II Regulation remains. 
Accordingly, the need for a reference for a preliminary ruling in this case is 
justified. 
In summary, the essential facts of the proceedings 
– An accident occurred in Portugal between a swimmer of French nationality and 
a Portuguese pleasure boat. 
– The swimmer and accident victim brought an action before a French court 
against a body formed under French law for that purpose and he received 
compensation for the damage suffered as a result of the accident. 
– The French body sued the insurer of the boat in the present proceedings, 
claiming reimbursement of the sum paid and relying on subrogation to the 
victim’s rights. 
– The insurer accepts that the subrogee has locus standi but argues that the right 
to compensation is time-barred under the system laid down in Portuguese law. 
The following question is referred to the Court of Justice of the European 
Union: 
 
8 The central aim of the Rome II Regulation is to promote the proper functioning of the internal 
market. 
REQUEST FOR A PRELIMINARY RULING OF 5. 4. 2022 – CASE C-264/22 
 
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Is the law applicable to the limitation period for the right to claim compensation 
that of the place of the accident (Portuguese law), in accordance with Article 4(l) 
and Article 15(h) of Regulation (EC) No 864/2007 of the European Parliament 
and of the Council of 11 July 2007, Rome II, or, since the claimant has taken the 
injured party’s place by subrogation, is the ‘law of the third person’ subrogee 
(French law) applicable in accordance with Article 19 of that Regulation? 
III. DECISION 
On those grounds, this Court decides: 
a) To stay the decision on the merits of the appeal. 
b) To refer the following question to the Court of Justice of the European 
Union for a preliminary ruling: Is the law applicable to the limitation rules 
for the right to claim compensation that of the place of the accident 
(Portuguese law), in accordance with Articles 4(l) and 15(h) of Regulation 
(EC) No 864/2007 of the European Parliament and of the Council of 11 July 
2007, Rome II, or, if the injured party’s place is taken by subrogation, is the 
‘law of the third person’ subrogee (French law) applicable in accordance 
with Article 19 of that Regulation? 
The proceedings are stayed pending the final decision of the Court of Justice of 
the European Union. 
The request for a preliminary ruling must be dealt with in accordance with the 
Recommendations to national courts and tribunals in relation to the initiation of 
preliminary ruling proceedings. Once receipt of the request for a preliminary 
ruling is confirmed, the registry will ask for information about its progress every 
three months. 
No costs are payable. 
Lisbon, 5 April 2022