Order;Information — ECLI:EU:C:2022:69
Date: 2022-01-31
Language of the case: Polish
Court formation: Tenth Chamber
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Poland

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Translation C-28/21 – 1 
Case C-28/21 
Request for a preliminary ruling 
Date lodged: 
15 January 2021 
Referring court: 
Sąd Okręgowy w Łodzi (Regional Court in Łódź, Poland) 
Date of the decision to refer: 
31 December 2020 
Applicant: 
TM 
Defendant: 
EJ 
  
[…] [case reference] 
DECISION 
On 31 December 2020, 
the Sąd Okręgowy w Łodzi, X Wydział Gospodarczy (Regional Court in Łódź, 
10th Commercial Division, Poland) 
[…] 
[…] [composition of the court] 
further to the in camera hearing in Łódź 
of the case brought by TM 
EN 
REQUEST FOR A PRELIMINARY RULING OF 31. 12. 2020 – CASE C-28/21 
 
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against EJ based in Riga (Latvia) 
for payment of PLN 114 300.00 
has decided: 
1. to refer the following question to the Court of Justice of the European Union 
for a preliminary ruling pursuant to Article 267(a) of the Treaty of 25 March 1957 
on the functioning of the European Union (Journal of Laws [Dz. U.] of 2004, 
No 90, item 864): 
- must the phrase ‘each Member State shall take all appropriate 
measures’ in Article 3 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 (OJ 2009 L 263, p. 11) be 
interpreted as meaning that, under the legislation of the Member States, 
insurance undertakings should be made fully liable under insurance against 
civil liability, including for such consequences as lost profits on the part of 
the victim? 
2. to stay the proceedings in the case pursuant to Article 177(1)(31) of the 
Kodeks Postępowania Cywilnego (Code of Civil Procedure) 
[…] [name of judge] [Or. 2] 
REFERENCE FOR A PRELIMINARY RULING 
TO THE COURT OF JUSTICE OF THE EUROPEAN UNION 
OF 31 DECEMBER 2020 
- concerning the material scope of insurance against civil liability in respect 
of the use of motor vehicles under 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 
(OJ 2009 L 263, p. 11)  
Referring court: 
Sąd Okręgowy w Łodzi, X Wydział Gospodarczy (Regional Court in Łódź, 
Poland, 10th Commercial Division) […] 
[…] 
[…] [contact details of the court] 
Indication of the case to which the question relates: […] [case reference] 
TM 
 
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case brought by TM 
against EJ [in] Latvia (formerly: RT in Latvia) 
for payment of PLN 114 300.00, 
Applicant: 
TM Przedsiębiorstwo Handlowo-Usługowe ‘X’ 
[…] 
[…] Łódź (Republic of Poland) 
[…] 
[…] [details of the applicant and its attorney] [Or. 3] 
Defendant: 
EJ in Latvia (formerly: RT) 
[…] 
[…] [details of the defendant and its attorney] 
I. Question referred: 
- Must the phrase ‘each Member State shall take all appropriate 
measures’ in Article 3 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 (OJ 2009 L 263, p. 11) be 
interpreted as meaning that, under the legislation of the Member States, 
insurance undertakings should be made fully liable under insurance against 
civil liability, including for such consequences as lost profits on the part of 
the victim?; 
II. Description of the subject matter of the case 
1. On 3 November 2017, the applicant TM brought an action before the 
Regional Court in Łódź against EJ (formerly RT) for payment of the amount 
of PLN 114 300.00 as reimbursement of profits lost as a result of a traffic 
accident involving a VOLVO […] [vehicle registration number] vehicle 
with a semi-trailer, together with statutory interest for late payment from 
23 April 2015. In support of his action, the applicant stated that on 
30 October 2014 in Kekava (Latvia), an accident occurred in which the 
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aforementioned Volvo vehicle with a semi-trailer was damaged. These 
vehicles were the applicant’s property and were registered in Poland. The 
insurer of the party responsible for the damage with respect to insurance 
against civil liability was the defendant – EJ (formerly: RT). As a result of 
the accident, the applicant’s vehicles [Or. 4] were damaged in such a way 
that it was impossible for them to return to the seat of the victim’s 
(applicant’s) company. The loss adjustment process concluded on 22 April 
2015 with the insurer paying compensation. The defendant accepted its 
liability for the event of 30 October 2014 but did not take into account the 
damage suffered by the applicant in terms of lost profits. The applicant was 
not able to provide transport services (perform transport) using the damaged 
vehicle until the compensation was paid, and the vehicle in question had 
been used for an average of 8 to 10 transports per month on the Stryków-
Riga-[Tallinn]-Stryków route. The applicant determined the value of the lost 
profits at the amount claimed in the action. 
2. In response, the defendant EJ (formerly: RT) sought dismissal of the 
claim in its entirety. In justification, it pointed out (apart from questioning its 
locus standi) that pursuant to Article 35(8) of the Law on compulsory 
insurance against civil liability of owners of motor vehicles of the Republic 
of Latvia, that is to say Latvian law, which is the law applicable to the 
insurer’s liability, the insurer does not cover income lost as a result of a 
traffic accident. 
III. Legal provisions applicable to the case 
1. EU Law: 
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 (OJ 2009 L 263, p. 11) 
Recitals: 
(2) Insurance against civil liability in respect of the use of motor vehicles (motor 
insurance) is of special importance for European citizens, whether they are 
policyholders or victims of an accident. It is also a major concern for insurance 
undertakings as it constitutes an important part of non-life insurance business in 
the Community. Motor insurance also has an impact on the free movement of 
persons and vehicles. It should therefore be a key objective of Community action 
in the field of financial services [Or. 5] to reinforce and consolidate the internal 
market in motor insurance. 
(3) Each Member State must take all appropriate measures to ensure that civil 
liability in respect of the use of vehicles normally based in its territory is covered 
TM 
 
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by insurance. The extent of the liability covered and the terms and conditions of 
the insurance cover are to be determined on the basis of those measures. 
Article 3 
Compulsory insurance of vehicles 
Each Member State shall, subject to Article 5, take all appropriate measures to 
ensure that civil liability in respect of the use of vehicles normally based in its 
territory is covered by insurance. 
The extent of the liability covered and the terms and conditions of the cover shall 
be determined on the basis of the measures referred to in the first paragraph. 
Each Member State shall take all appropriate measures to ensure that the contract 
of insurance also covers: 
(a) according to the law in force in other Member States, any loss or injury 
which is caused in the territory of those States; 
(b) any loss or injury suffered by nationals of Member States during a direct 
journey between two territories in which the Treaty is in force, if there is no 
national insurers’ bureau responsible for the territory which is being crossed; in 
such a case, the loss or injury shall be covered in accordance with the national 
laws on compulsory insurance in force in the Member State in whose territory the 
vehicle is normally based. 
The insurance referred to in the first paragraph shall cover compulsorily both 
damage to property and personal injuries. 
Article 5 
Derogation from the obligation in respect of compulsory insurance of vehicles 
1. A Member State may derogate from Article 3 in respect of certain natural or 
legal persons, public or private; a list of such persons shall be drawn up by the 
State concerned and communicated to the other Member States and to the 
Commission.  
A Member State so derogating shall take the appropriate measures to ensure that 
compensation is paid in respect of any loss or injury caused in its territory and in 
the territory of other Member States by vehicles belonging to such persons. [Or. 
6] 
It shall in particular designate an authority or body in the country where the loss 
or injury occurs responsible for compensating injured parties in accordance with 
the laws of that State in cases where Article 2(a) is not applicable. 
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It shall communicate to the Commission the list of persons exempt from 
compulsory insurance and the authorities or bodies responsible for compensation. 
The Commission shall publish that list. 
2. A Member State may derogate from Article 3 in respect of certain types of 
vehicle or certain vehicles having a special plate; the list of such types or of such 
vehicles shall be drawn up by the State concerned and communicated to the other 
Member States and to the Commission. 
Any Member State so derogating shall ensure that vehicles referred to in the first 
subparagraph are treated in the same way as vehicles for which the insurance 
obligation provided for in Article 3 has not been satisfied. 
2. Law of the Republic of Latvia: 
Sauszemes transportlīdzekļu īpašnieku civiltiesiskās atbildības obligātās 
apdrošināšanas likums (Law of 7 April 2004 on compulsory insurance 
against civil liability of owners of motor vehicles, ‘the OCTA’) 
Article 35 
The Insurer or the Motor Insurers’ Bureau shall not reimburse [not compensate]: 
(1) losses which arose during the use of the motor vehicle, but which do not 
give rise to liability under Article 2347 of the Civil Code. These are losses caused 
to a third party as a result of force majeure, in connection with that third party’s 
own intention or as a result of that third party’s gross negligence; 
(2) losses caused by an unidentified motor vehicle, with the exception of losses 
caused to the person referred to in Article 19 and losses to the property referred to 
in Article 25(1)(4) and (5) of that Law. If at least one person injured in a traffic 
accident has suffered severe bodily injuries or medium [moderate] bodily injuries, 
all persons involved in the traffic accident in question shall be compensated for 
the losses referred to in Article 25 of that Law; 
(3) losses caused to the property of the owner or legal user of the motor vehicle 
who caused the traffic accident and personal losses suffered by the driver of the 
motor vehicle who caused the traffic accident. The losses [Or. 7] referred to in 
this point shall be compensated in the cases referred to in Article 31(5) and (7) of 
that Law; 
(4) losses caused by damage, total loss or disappearance of the motor vehicle 
and the property contained therein, where the loss in question was sustained by 
persons following a traffic accident; 
TM 
 
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(5) losses caused in connection with the use of the motor vehicle during a test 
drive or as a result of the use of the vehicle for the purpose of a test drive or 
during a motor racing event; 
(6) losses caused by damage to the motor vehicle or to a trailer hitched or 
otherwise attached to the motor vehicle, which trailer caused the loss in question 
in a traffic accident; 
(7) losses directly or indirectly caused by or contributed to by ionising radiation, 
radioactive contamination caused by any nuclear fuel or any radioactive, toxic, 
explosive or otherwise dangerous element of an explosive nuclear mixture or 
nuclear component thereof; 
(8) profit not received due to a traffic accident; 
(9) losses caused by a rock or other object which has been moved by a motor 
vehicle or by a device attached thereto; 
(10) the expenses incurred by an insurance company as a result of the occurrence 
of an insured event provided for in the health insurance contract, except where, 
under the health insurance contract, the insurance company compensates for the 
losses by applying the principle of compensation; 
(11) losses caused to the property of a third party which property was accepted 
for commercial carriage by the owner or legal user of the motor vehicle who 
caused the traffic accident; 
(12) losses due to damage or total loss of property which arose in a traffic 
accident that should have been reported to the State Police in accordance with 
laws and regulations but which was not reported in bad faith or due to the gross 
negligence of the persons involved in the traffic accident in question; 
(13) losses occurring in the manoeuvring area of an aerodrome in a road accident 
involving a motor vehicle and an aircraft; 
(14) losses caused to the lessee’s property and to motor vehicles used under a 
leasing contract, resulting from a road accident in which the motor vehicles in 
question were involved and which were leased to one and the same lessee 
identified as the owner of the motor vehicles in question in the National Register 
of Vehicles and Drivers [Or. 8] of the General Directorate for National Roads and 
Motorways or in the information system for tractors and their drivers of the 
National Technical Inspection Agency. 
Civillikums (Law of 28 January 1937 – the Civil Code) 
Article 1771 
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Losses may be either such losses as have already arisen, or such losses as are 
anticipated; in the former case they give rise to a right to compensation, but in the 
latter case to a right to security. 
Article 1786 
When evaluating losses, consideration should be given not only to the value of the 
principal property and its appurtenances, but also to the detriment indirectly 
caused by the loss having taken place and lost profits. 
Article 1787 
The mere possibility of the occurrence of lost profits shall not be used as the basis 
for their calculation; rather, there must be no doubt, or it must at least be proven to 
a level that would be credible as legal evidence, that such detriment resulted, 
directly or indirectly (Article 1773), from the act or failure to act which caused the 
loss. 
IV. A statement of the reasons which prompted the referring court or 
tribunal to inquire about the interpretation or validity of certain provisions 
of European Union law, and the relationship between those provisions and 
the national (Latvian) legislation applicable to the main proceedings 
1 In the case before the referring court, a doubt arose as to the extent to which 
Article 3 of Directive 2009/103/EC of the European Parliament and of the Council 
imposes on the Member States an obligation to ensure (through legislation) that 
civil liability in respect of the use of motor vehicles is covered by insurance. Must 
this obligation be interpreted as meaning that, within the framework of ‘all 
appropriate measures’, each Member State should make insurance against civil 
liability cover the full extent of loss or injury, including the loss of anticipated 
profits, and thus is not Article 35(8) of the Latvian Law on compulsory insurance 
against civil liability of owners of motor vehicles incompatible with Article 3 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 [Or. 9] 
the use of motor vehicles, and the enforcement of the obligation to insure against 
such liability? 
2 The applicable law is determined by the Convention on the law applicable to 
traffic accidents concluded at The Hague on 4 May 1971, according to which the 
applicable law is the internal law of the State where the accident occurred, that is, 
the law of the Republic of Latvia 1 in the present case. However, despite the fact 
that the case must be resolved pursuant to Latvian law, it is important that the 
relevant provisions of European Union law are taken into consideration. 
 
1 In conjunction with Article 28(1) of Regulation (EC) No 864/2007 of the European Parliament 
and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome 
II) (OJ 2007 L 199, p. 40). 
TM 
 
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3 Article 3 of Directive 2009/103/EC of the European Parliament and of the Council 
of 16 September 2009, cited above, requires Member States to introduce into their 
national legal systems a universal obligation to insure vehicles. It does not, 
however, specify the extent of insurance cover which each Member State should 
ensure in connection with civil liability in respect of the use of motor vehicles. On 
the other hand, the second sentence of Article 3 stipulates that the extent of the 
liability covered and the terms and conditions of the cover shall be determined on 
the basis of the measures (‘appropriate measures’) referred to in the first 
paragraph. 
4 According to the Court’s settled case-law, in interpreting a provision of EU law, it 
is necessary to consider not only its wording but also the context in which that 
provision arises and the objectives pursued by the rules of which it is part (see the 
judgment of the Court of Justice of 22 November 2012 in Case C-219/11 and the 
case-law cited therein as well as the judgment of 11 July 2013 in Case C-409/11, 
www.curia.europa.eu). Therefore, in view of the general nature of the wording of 
Article 3 of Directive 2009/103/EC of the European Parliament and of the 
Council, the scope of the obligation placed on the Member States must be 
interpreted with a view to the context and the objectives of that provision. 
5 Interpretative difficulties and doubts are exacerbated by the use of the term 
‘appropriate measures’ in Article 3 of the directive, which may be interpreted in 
different ways given its vague and general meaning, especially in the Polish 
language version. 
6 Recital 2 of Directive 2009/103/EC of the European Parliament and of the Council 
stresses the importance of that regulation and points out that the key objective of 
Community action is [Or. 10] to reinforce and consolidate the internal market in 
motor insurance. Therefore, in the view of the referring court, the national 
legislation of the Member States must ensure that victims of accidents receive 
similar treatment irrespective of where in the European Union the accident 
occurred. It would appear both from the recitals and from the provisions of the 
directive that the EU legislature’s intention is to strengthen the free movement of 
vehicles and persons, which would argue in favour of an interpretation of EU laws 
that would oblige Member States to regulate insurance against civil liability to the 
fullest extent, that is to say, including with regard to the reimbursement of profits 
lost by the victim. 
7 In the Member States, including the Republic of Poland, it is an established view 
both in case-law and in legal doctrine that the victim has the right to claim 
compensation to the full extent of the damage, including both damnum emergens 
and lucrum cessans. Polish law also provides that the insurer’s obligation to 
compensate for the damage must be fulfilled in accordance with the principle of 
full compensation, covering all losses suffered in connection with the event giving 
rise to the claim as well as all benefits that the victim would have obtained if the 
event giving rise to the claim had not occurred. 
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8 Moreover, in accordance with the fourth paragraph of Article 3 of Directive 
2009/103/EC of the European Parliament and of the Council, insurance against 
civil liability must cover any loss or injury suffered. There is no doubt that the 
victim’s loss of profits in connection with the inability to use the damaged vehicle 
(the victim is an entrepreneur who provides transport services) constitutes a loss 
suffered in connection with the event giving rise to the claim. Therefore, the 
causal link appears to be beyond doubt. Apart from the issue of the amount of 
damage, the current dispute before the court is limited to the interpretation of the 
law. In the opinion of the referring court, a literal interpretation of Article 35(8) of 
the Latvian Law on compulsory insurance against civil liability of owners of 
motor vehicles may not be compatible with the wording and purpose of the fourth 
paragraph of Article 3 of the directive, since it may result in a situation in which 
insurance against civil liability does not cover the loss suffered in connection with 
the event giving rise to the claim. It should be noted that, before making a request 
for a preliminary ruling, the referring court consulted the information available on 
the practice of the Latvian courts and on the interpretation of those provisions, 
including in particular [Or. 11] the relationship between Article 35(8) of the Law 
in question and Article 1771 et seq. of the Civil Code. The opinion drawn up by 
foreign law expert […] [lawyer’s name] on 6 March 2020 (together with a 
supplementary opinion) confirms the restrictive interpretation of Article 35(8) of 
the Latvian Law on compulsory insurance against civil liability of owners of 
motor vehicles. In particular, it follows from this opinion that the provisions of the 
cited Law (OCTA) are special regulations in relation to the provisions of the Civil 
Code and as such have priority over the latter. The provision of Latvian law 
(Article 35(8) OCTA) therefore exclude the possibility of claiming lost profits 
from the insurer of the person who caused the damage. 
9 In the view of the referring court, the wording of Article 5 of Directive 
2009/103/EC of the European Parliament and of the Council, which provides for 
derogations from the obligation to insure vehicles in respect of certain natural or 
legal persons, also supports the argument that, within the framework of ‘all 
appropriate measures’, a Member State is obliged to make insurance against civil 
liability cover losses resulting from lost profits, since even with the derogation 
referred to in Article 5 of the directive, a Member State should take measures to 
ensure that compensation is paid in respect of any loss or injury caused in its 
territory and in the territory of other Member States by vehicles belonging to such 
persons. 
10 According to the referring court, the above considerations may result in the 
conclusion that the manner in which Article 35(8) of the Latvian Law is 
interpreted, in so far as it limits (excludes) the liability of insurance undertakings, 
may have effects which are incompatible with the objectives of Directive 
2009/103/EC of the European Parliament and of the Council, since that 
interpretation would mean depriving a victim established in another Member State 
of the ability to obtain compensation for a loss in the form of lost profits. The 
answer to the question referred for preliminary ruling is relevant for the dispute 
TM 
 
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pending before the referring court and will determine the legitimacy of further 
proceedings in the present case. 
[signature of judge]