Judgment;Summary — ECLI:EU:C:2021:1043
Date: 2021-12-21
Language of the case: Polish
Court formation: Second Chamber
Subject matter: Right of establishment;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Poland

Translation C-428/20 – 1 
Case C-428/20 
Request for a preliminary ruling 
Date lodged: 
11 September 2020 
Referring court: 
Sąd Apelacyjny w Warszawie (Poland) 
Date of the decision to refer: 
28 August 2020 
Appellant: 
A.K. 
Respondent: 
Skarb Państwa 
  
[...] 
ORDER 
28 August 2020 
Sąd Apelacyjny w Warszawie I Wydział Cywilny (Court of Appeal, Warsaw, First 
Civil Chamber) [...]: 
[...] 
further to the hearing on 28 August 2020 in Warsaw  
[...] 
in the action brought by A. K. 
against the Skarb Państwa (State Treasury) represented by the Minister … 
concerning payment 
EN 
REQUEST FOR A PRELIMINARY RULING OF 28.8.2020 – CASE C-428/20 
 
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arising from an appeal lodged by brought by the appellant against the judgment of 
the Sąd Okręgowy w Warszawie (Regional Court, Warsaw) 
[order] 
makes the following order: 
1. The following question shall be referred to the Court of Justice of the 
European Union for a preliminary ruling: 
Under Article 2 of Directive 2005/14/EC of 11 May 2005 amending Council 
Directives 72/166/EEC, 84/5/EEC, 88/357/EEC and 90/232/EEC and Directive 
2000/26/EC of the European Parliament and of the Council relating to insurance 
against civil liability in respect of the use of motor vehicles, is a Member State, 
which has established a transitional period within which to adapt minimum 
guarantees, under an obligation to increase guarantees to at least a half of the 
amounts provided for in Article 1(2) of Directive 84/5/EEC, as amended, within 
30 months of the expiry of the time limit for implementing that directive: 
- in respect of all motor insurance contracts in force after the expiry of those 
30 months, including contracts concluded before 11 December 2009 but still in 
force after that date – in cases of damage occurring after 11 December 2009, 
- or only in respect of new motor insurance contracts concluded after 
11 December 2009? 
2. The appeal proceedings are stayed pursuant to Article 177(1)(3)1 of the Code 
of Civil Procedure. 
[...] 
GROUNDS [Or.2] 
Subject matter and legal basis for the reference for a preliminary ruling 
Article 2 of Directive 2005/14/EC of the European Parliament and of the Council 
of 11 May 2005 amending Council Directives 72/166/EEC, 84/5/EEC, 
88/357/EEC and 90/232/EEC and Directive 2000/26/EC of the European 
Parliament and of the Council relating to insurance against civil liability in respect 
of the use of motor vehicles (OJ 2005 L 149/14; ‘Directive 2005/14’), in 
conjunction with Article 29 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 233/11; ‘Directive 
2009/103’). 
Article 267 of the Treaty on the Functioning of the European Union. 
Subject matter of the dispute 
A.K. 
 
3 
1. The subject matter of the dispute is a claim against the State Treasury for 
damages as a result of the incorrect and incomplete implementation of Directive 
2005/14. 
Facts of the case 
2. On 12 October 2010 [...] a road accident occurred in Poland [...] which 
resulted in the death of 16 people, including G. M. and the person responsible for 
the accident – the driver V. …, who had motor vehicle liability insurance under an 
insurance contract concluded for the period from 8 December 2010 to 7 December 
2010 with … S.A. (a public limited company) established in Ł. [...]. 
3. In connection with the death of G. M., her daughter, the appellant A. K., 
reported the damage on 2 March 2011 to …, claiming non-material and material 
damages. In the course of the settlement proceedings, the appellant finally 
received from … the amount of PLN 47 000 as compensation for non-material 
damage pursuant to Article 446(4) of the kodeks cywilny (the Civil Code) and 
PLN 5 000 as damages as a result of the significant deterioration in her 
circumstances under Article 446(4) of the Civil Code. 
4. A. K. was finally notified by … that the amount of cover under liability 
insurance policy No … had been exhausted. 
Form of order sought in the application and the position of the parties 
5. The appellant is seeking damages from the State Treasury in the amount of 
PLN 78 000, plus default interest, as compensation for the damage caused by the 
incomplete implementation of Directive 2005/14. She argues that if it had been 
implemented properly she would have received an additional PLN 78 000 by way 
of compensation for the non-material harm sustained as a result of her mother’s 
death. The defective implementation had deprived her of the possibility of 
obtaining that service from …, which means that the respondent caused material 
damage to the appellant’s property in that amount. 
6. The appellant considers that the Polish State was obliged to transpose the 
provisions of Directive 2005/14 in such a way that, as from 11 December 2009, 
the guarantee in all compulsory motor vehicle liability insurance contracts 
amounted, in the case of personal injury, to EUR 2 500 000 per claim. However, 
the Ustawa z dnia 24 maja 2007 r. o zmianie ustawy o ubezpieczeniach 
obowiązkowych, Ubezpieczeniowym Funduszu Gwarancyjnym i Polskim Biurze 
Ubezpieczycieli Komunikacyjnych (Law of 24 May 2007 amending the Law on 
compulsory insurance, the Insurance Guarantee Fund and the Polish Motor 
Vehicle Insurance Office) had differentiated the scope of protection in such way 
that the level of protection afforded to victims following damage which occurred 
between 1 December 2009 and December 2010 depended on the date on which 
the insurance contract was concluded. Both contracts concluded from 11 [Or.3] 
December 2009 providing for a guarantee of EUR 2 500 000 and contracts 
REQUEST FOR A PRELIMINARY RULING OF 28.8.2020 – CASE C-428/20 
 
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concluded before 11 December 2009, in which the guarantee amounted to only 
EUR 1 500 000, were in operation during this period. 
7. The respondent State Treasury in the person of the Minister … contends that 
the action should be dismissed. It maintains that the directive was implemented 
correctly. It refers to the principle of non-retroactivity, and also points out that 
proceedings brought by the European Commission against Poland concerning 
infringement of [...] …, as regards deficiencies in the implementation of Directive 
2005/14 were under way, but the Commission decided to discontinue them on 
28 April 2016. The respondent takes the view the Commission thereby 
acknowledged that there had been no infringement of EU law. 
Relevant provisions of EU law 
8. Directive 2005/14 
Article 2 
Amendments to Directive 84/5/EEC 
Article 1 of Directive 84/5/EEC is replaced by the following: 
‘Article 1 
1. The insurance referred to in Article 3(1) of Directive 72/166/EEC shall cover 
compulsorily both damage to property and personal injuries. 
2. Without prejudice to any higher guarantees which Member States may lay 
down, each Member State shall require insurance to be compulsory at least in 
respect of the following amounts: 
(a) in the case of personal injury, a minimum amount of cover of EUR 1 000 000 
per victim or EUR 5 000 000 per claim, whatever the number of victims; 
(b) in the case of damage to property, EUR 1 000 000 per claim, whatever the 
number of victims. 
If necessary, Member States may establish a transitional period of up to five years 
from the date of implementation of Directive 2005/14/EC of the European 
Parliament and of the Council of 11 May 2005 amending Council Directives 
72/166/EEC, 84/5/EEC, 88/357/EEC and 90/232/EEC and Directive 2000/26/EC 
of the European Parliament and of the Council relating to insurance against civil 
liability in respect of the use of motor vehicles, within which to adapt their 
minimum amounts of cover to the amounts provided for in this paragraph. 
Member States establishing such a transitional period shall inform the 
Commission thereof and indicate the duration of the transitional period. 
A.K. 
 
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Within 30 months of the date of implementation of Directive 2005/14/EC Member 
States shall increase guarantees to at least a half of the levels provided for in this 
paragraph.’ 
9. Directive 2009/103 
Article 29 Repeal 
Directives 72/166/EEC, 84/5/EEC, 90/232/EEC, 2000/26/EC and 2005/14/EC, as 
amended by the Directives listed in Annex I, Part A, are hereby repealed, without 
prejudice to the obligations of the Member States relating to the time limits for 
transposition into national law and application of the Directives set out in Annex I, 
Part B. … [Or. 4] 
Relevant provisions of national law 
10. Ustawa z dnia 24 maja 2007 r. o zmianie ustawy o ubezpieczeniach 
obowiązkowych, Ubezpieczeniowym Funduszu Gwarancyjnym i Polskim Biurze 
Ubezpieczycieli Komunikacyjnych oraz ustawy o działalności ubezpieczeniowej 
(Law of 24 May 2007 amending the Law on compulsory insurance, the Insurance 
Guarantee Fund and the Polish Motor Vehicle Insurance Office and the Law on 
the insurance business) (Dziennik Ustaw No 102, item 691; ‘Law of 24 May 
2007’) 
Article 1 
The Law on compulsory insurance, the Insurance Guarantee Fund and the Polish 
Motor Vehicle Insurance Office (Dziennik Ustaw No 124, item 1152, as 
subsequently amended) is amended as follows: 
1. … 
2. Article 36(1) is replaced by the following: 1. The compensation shall be 
determined and paid within the limits of the civil liability of the holder or driver of 
the motor vehicle, but up to the maximum guarantee laid down in the insurance 
contract. The guarantee may not be lower than the equivalent in zlotys: 
(1) in the case of personal injury – of EUR 5 000 000 in relation to each event, the 
effects of which are covered by the insurance, whatever the number of victims, 
(2) in the case of damage to property – of EUR 1 000 000 in relation to each 
event, the effects of which are covered by the insurance, whatever the number of 
victims 
- determined by applying the average exchange rate announced by the National 
Bank of Poland on the day on which the injury or damage was caused. 
… 
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Article 3 
The previous provisions shall apply to insurance contracts concluded before the 
date on which this Law enters into force. 
Article 5 
In the case of contracts for motor vehicle liability insurance and farmers liability 
insurance the amount of the minimum guarantee shall be the equivalent in zlotys: 
(1) in respect of contracts concluded in the period up to 10 December 2009: 
(a) in the case of personal injury – of EUR 1 500 000 in relation to each event, the 
effects of which are covered by the insurance, whatever the number of victims, 
(b) in the case of damage to property – of EUR 300 000 in relation to each event, 
the effects of which are covered by the insurance, whatever the number of victims 
- determined by applying the average exchange rate announced by the National 
Bank of Poland on the day on which the injury or damage was caused; 
(2) in respect of contracts concluded between 11 December 2009 and 10 June 
2012: 
(a) in the case of personal injury – of EUR 2 500 000 in relation to each event, the 
effects of which are covered by the insurance, whatever the number of victims, 
(b) in the case of damage to property – of EUR 500 000 in relation to each event, 
the effects of which are covered by the insurance, whatever the number of victims 
[Or.5] 
- determined by applying the average exchange rate announced by the National 
Bank of Poland on the day on which the injury or damage was caused. 
11. Civil Code 
Article 446(1) If the victim died as a result of physical injury or health disorder, 
the person required to pay compensation for the injury or damage shall reimburse 
the costs of the treatment and the funeral to the person who sustained it. … 
4. The court may also grant the closest members of the deceased’s family an 
appropriate sum by way of pecuniary compensation for non-material damage. 
Article 417(1) The State Treasury or local government unit or another legal person 
exercising public authority under the law shall be liable for damage caused by an 
unlawful act or omission in the exercise of public authority. 
Article 4171(4). If the damage was caused by a failure to issue a legislative act, the 
obligation to issue thereof being provided for in an applicable provision of law, 
A.K. 
 
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the unlawfulness of the failure to issue such an act shall be determined by the 
court seised of the case for compensation for injury or damage. 
12. Ustawa z dnia 22 maja 2003 r. o ubezpieczeniach obowiązkowych, 
Ubezpieczeniowym Funduszu Gwarancyjnym i Polskim Biurze Ubezpieczycieli 
Komunikacyjnych (Law of 22 May 2003 on compulsory insurance, the Insurance 
Guarantee Fund and the Polish Motor Vehicle Insurance Office) (Dziennik Ustaw 
No 124, item 1152, as subsequently amended; ‘Law on compulsory insurance’): 
Article 19(1). The victim may, in connection with an event covered by a 
compulsory liability insurance contract, pursue claims directly with the insurance 
company. … 
Article 26(1). A motor vehicle liability insurance contract shall be concluded for a 
period of 12 months, subject to Article 27. 
Civil proceedings to date 
13. By judgment of 30 May 2016, the Sąd Okręgowy w Warszawie (Regional 
Court, Warsaw) dismissed the action. The Regional Court held that the guarantee 
under policy No … had not been exhausted, and therefore the appellant had not 
sustained any injury or damage. The Court of Appeal [...] set aside that judgment 
and referred the case back. The Court of Appeal found that the guarantee had been 
definitively exhausted and therefore the court of first instance should consider the 
plea alleging incorrect implementation of Directive 2005/14 and establish whether 
the appellant had sustained harm. 
14. By judgment of 20 March 2019, the Regional Court again dismissed the 
action. 
15. Referring to Article 4171(4) of the Civil Code, the Regional Court ruled that 
the provisions do not give a citizen the right to compensation for non-material 
damage sustained in the case of legislative omission. In the view of the Regional 
Court, the appellant is seeking compensation for non-material damage and not 
material damage. 
16. The Regional Court also held that Directive 2005/14 was implemented 
correctly, applying the permissible transitional periods for increasing the 
guarantees to half the target amount and to the final amount thereof. The Regional 
Court considers that the obligation to increase the guarantees, as laid down in the 
directive, applied only to contracts concluded after the expiry of the transitional 
periods and did not cover the requirement to increase the guarantee in contracts 
which were established before the expiry of the transitional period, even if those 
contracts formed the basis for insurance [Or.6] cover also for a certain period 
after the expiry of the transitional time limit. The Regional Court referred to the 
principles of legal certainty, non-retroactivity and freedom of contract. 
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17. The Polish legislature, which incorporated the terms of the directive into the 
Polish legal order by the Law of 24 May 2007 that entered into force on 11 June 
2007, made use of its powers in relation to transitional periods by providing for a 
gradual increase in the guarantee in Article 5 thereof, which stipulates inter alia 
that in the case of motor vehicle liability insurance contracts the amount of the 
guarantee is to be the equivalent in zlotys: 
- in respect of contracts concluded in the period up to 10 December 2009, in the 
case of personal injury – of EUR 1 500 000 in relation to each event, the effects of 
which are covered by the insurance, whatever the number of victims, 
- in respect of contracts concluded between 11 December 2009 and 10 June 2012, 
in the case of personal injury – of EUR 2 500 000 in relation to each event, the 
effects of which are covered by the insurance, whatever the number of victims. 
18. Thus, the legislature increased the guarantee to half the target amount in 
respect of contracts concluded between 11 December 2009 and 10 June 2012. The 
motor vehicle liability insurance contract of the person responsible for the 
accident, in which the appellant’s mother died, was concluded on 8 December 
2009. Article 5(1) of the Law of 24 May 2007, under which the minimum 
guarantee in the event of personal injury is to be EUR 1 500 00 in relation to each 
event, the effects of which are covered by the insurance, whatever the number of 
victims, will be applicable to it. 
19. In the view of the Regional Court, that implementation of Directive 2005/14 
was complete and not defective. 
20. The appellant appealed against the decision of the Regional Court of 
20 March 2019, alleging inter alia infringement of Article 4171(4) of the Civil 
Code by the unfounded assumption that the respondent had correctly implemented 
Directive 2005/14 in the national legal order. 
Reasons for referring the questions for a preliminary ruling 
21. The Court of Appeal notes that since the judgment of the Court of Justice of 
24 October 2013 in Case C-22/12 there has been no doubt that compulsory motor 
vehicle liability insurance must cover compensation for non-material damage 
sustained by close relatives of victims who have died in a road traffic accident in 
so far as such compensation is provided for by way of the civil liability of the 
insured person under the applicable national law. The protection in this regard 
covers any person entitled under national civil liability law for compensation for 
damage caused by motor vehicles. 
22. Polish law provides for such compensation in Article 446(4) of the Civil 
Code. The compensation provided for in that provision is covered by compulsory 
motor vehicle liability insurance. 
A.K. 
 
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23. In the view of the Court of Appeal, if the appellant did not obtain the 
pecuniary compensation for non-material damage due to her from … because the 
guarantee had been exhausted, there was thus damage to her property 
corresponding to the difference between benefit paid by … and the benefit due. If 
the plea alleging defective implementation of the directive turns out to be correct, 
the State Treasury will be liable for the injury or damage caused under 
Article 4171(4) of the Civil Code. 
24. The Court of Appeal notes that according to recital 10 of Directive 2005/14, 
its purpose is to protect victims. The Court of Appeal is unable to find anything in 
Directive 2005/14 to suggest increased protection could cover only some victims 
for a period of one year from the expiry of the 30-month transitional period (and, 
similarly, one year from the expiry of the 5-year transitional period). In particular, 
the directive contains no provisions which would directly restrict the obligation to 
increase the guarantee only to contracts concluded as from 11 December 2009, 
completely overlooking insurance contracts which were concluded previously but 
still in force for a certain period after 11 December 2009. 
25. The Court of Appeal can see no reasons that could justify differentiation in 
level of legal protection afforded to victims at the same time in different traffic 
accidents, particularly since such differentiation would depend on chance, that is 
to say on the date [Or.7] on which the insurance contract covering the vehicle of 
the person responsible for the damage was concluded. The Court of Appeal is 
unable to find any arguments to support a legal interpretation of the directive that 
allows contracts in which the guarantee under the compulsory liability insurance 
amounts to EUR 2 500 000 and contracts in which it amounts to considerably less, 
namely EUR 1 500 000, to operate in parallel. 
26. The Court of Appeal finds unconvincing the reference by the respondent and 
the Regional Court to the principle of non-retroactivity. That principle does not 
preclude change to existing contractual obligations with future effect. 
27. The reference to the principle of legal certainty is also doubtful in this case. 
The long period for implementing the directive and the right to make use of the 
transitional periods allowed the legislative process to be carried out in a timely 
manner so that the parties to insurance contracts concluded in December 2008 and 
during 2009 were aware that the level of protection afforded would increase in 
respect of cases of damage occurring from 11 December 2009. This would have 
allowed insurers to adjust the level of insurance premiums to the amount of the 
new guarantee. Therefore, the introduction of a new guarantee in all insurance 
contracts with effect from 11 December 2009 could be effected in accordance 
with the principle of legal certainty. 
28. In the light of the foregoing considerations, the Court of Appeal is inclined 
to interpret Article 2 of Directive 2005/14 as proposed by the appellant. 
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29. The Court of Appeal has no doubt that the result intended by Article 2 of 
Directive 2005/14 included conferring certain rights on individuals. The purpose 
of this provision was to increase the level of protection for victims, inter alia by 
increasing the guarantees in insurance contracts. Therefore, if it transpired that the 
Polish State implemented the directive in an incomplete and thus defective 
manner, the first precondition for liability in damages would certainly be met (in 
this respect the Court of Appeal refers to the judgment of the Court of Justice of 
19 November 1991 in Joined Cases C-6/90 and C-9/90, highlighting in particular 
the arguments contained in paragraphs 33 to 41 thereof). Only then does 
determination of that precondition make it necessary to consider in the main 
proceedings whether and to what extent the appellant has sustained damage with a 
causal link to the respondent State’s failure to fulfil its obligation. 
30. At the same time the Court of Appeal notes that it considers that the other 
legal arguments of the Regional Court are defective. There is no doubt that in this 
case the appellant is claiming damages from the State Treasury for damage to 
property. The appellant claims that as a result of the incomplete implementation of 
the directive she was unable to obtain from the insurer further compensation for 
the harm sustained as a result of her mother’s death in the amount of PLN 78 000. 
In actual fact, as the court of first instance stated, the compensation due to the 
appellant from the insurer was intended to compensate her for non-material harm. 
It does not alter the fact that pecuniary compensation is a form a compensation for 
non-material damage provided for under Polish law. Therefore, it must be 
concluded that defective implementation is capable of causing material damage to 
the appellant’s property in the form of failure to obtain a pecuniary benefit from 
the insurer. The classification of the appellant’s claim against the State Treasury 
as a claim for material damage does not preclude the fact that the non-material 
damage resulting from the death of the appellant’s mother was the source of her 
unmet pecuniary claims against the insurer. 
31. Since the issue set out has not formed the subject matter of a judgment of the 
Court of Justice, the Court of Appeal considered it necessary in the above 
circumstances to stay proceedings and to make a reference to the Court of Justice 
for a preliminary ruling on the interpretation of Article 2 of Directive 2005/14. 
[...]