Opinion of the Advocate General — ECLI:EU:C:2022:1004
Date: 2022-12-15
Language of the case: Polish
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Poland

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: 
30 September 2021 
Referring court: 
Sąd Rejonowy dla m.st. Warszawy w Warszawie (Poland) 
Date of the decision to refer: 
30 August 2021 
Applicants: 
AR 
BF 
ZN 
NK Sp. z o.o., s.k. 
KP 
RD Sp. z o.o. 
Defendants: 
PK SA 
CR 
SI SA 
MB SA 
OL SA 
SI SA 
EZ SA 
  
EN 
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Subject matter of the main proceedings 
1 The subject matter of five of the cases is the level of due compensation claimed as 
a result of road accidents from insurance undertakings covering, as regards civil 
liability for the owners of motor vehicles, the persons responsible for the 
accidents. The subject matter of one case is the cost of repairing the damage 
resulting from a defective garage door, which fell and destroyed a car. The 
referring court’s considerations concerning the damage caused by the accidents 
also relate to the latter damage. 
Subject matter and legal basis of the request  
2 The questions referred for a preliminary ruling concern the scope of the direct 
right of action against a civil liability insurer, as laid down in Article 18 of 
Directive 2009/103/EC and enjoyed by a party injured in connection with the use 
of motor vehicles. 
Questions referred for a preliminary ruling 
3 ‘1. Must Article 18 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, in conjunction with Article 3 thereof, be interpreted 
as precluding national legislation under which an injured party who exercises a 
direct right of action for repair of the damage to his/her vehicle in connection with 
the use of motor vehicles against an insurance undertaking covering the person 
responsible for the accident, as regards civil liability, can obtain from the 
insurance undertaking only compensation for the real and actual loss to his/her 
property, that it is to say, the difference between the value of the vehicle in its 
state before the accident and the value of the damaged vehicle, plus the reasonable 
costs actually incurred in repairing the vehicle and any other reasonable costs 
actually incurred as a result of the accident, whereas if he/she sought a remedy 
directly from the person responsible, he/she could opt to require the latter to 
restore the vehicle to its state before the damage occurred (repair of the damage by 
the person responsible or by a garage paid by that person), instead of claiming 
compensation? 
2. If the answer to the previous question is in the affirmative, must Article 18 
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, in conjunction with Article 3 thereof, be interpreted as precluding 
national legislation under which an injured party who exercises a direct right of 
action for repair of the damage to his/her vehicle in connection with the use of 
motor vehicles against an insurance undertaking covering the person responsible 
for the accident, as regards civil liability, can obtain from the insurance 
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undertaking, instead of compensation for the real and actual loss to his/her 
property, that it is to say, the difference between the value of the vehicle in its 
state before the accident and the value of the damaged vehicle, plus the reasonable 
costs actually incurred of repairing the vehicle and any other reasonable costs 
actually incurred as a result of the accident, only an amount corresponding to the 
costs of restoring the vehicle to its state before the damage, whereas if he/she 
sought a remedy directly from the person responsible, he/she could opt to require 
the latter to restore the vehicle to its state before the damage occurred (and not 
merely provide funds for that purpose), instead of claiming compensation? 
3. If the answer to Question [1] is in the affirmative and the answer to Question 
[2] is in the negative, must Article 18 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, in conjunction with Article 3 thereof, be 
interpreted as precluding national legislation under which an insurance 
undertaking, to which the owner of a car damaged in connection with the use of 
motor vehicle applied for payment of hypothetical costs which he/she has not 
incurred but would have had to incur if he/she had decided to restore the vehicle 
to its state before the accident, can: 
a. make that payment conditional on the injured party proving that he/she 
genuinely intends to have the vehicle repaired in a specific way, by a 
specific mechanic, at a specific price for parts and services, and to transfer 
the funds for that repair directly to that mechanic (or to the seller of the parts 
necessary for the repair), subject to reimbursement, if the purpose for which 
the funds were paid should not be fulfilled, and if not: 
b. make that payment conditional on the consumer undertaking to show, within 
an agreed period, that he/she has used the funds paid to repair the vehicle or 
to reimburse them to the insurance undertaking, and if not: 
c. after the payment of those funds and indication of the purpose of the 
payment (the manner in which they are used) and expiry of the necessary 
period during which the injured party was able to have the car repaired), 
require him/her to show that those funds have been spent on the repair or 
refunded 
– so as to rule out the possibility of the injured party enriching 
himself/herself as a result of the damage? 
4. If the answer to Question [1] is in the affirmative and the answer to Question 
[2] is in the negative, must Article 18 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, in conjunction with Article 3 thereof, be 
interpreted as precluding national legislation under which the injured party, who is 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-618/21 
 
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no longer the owner of the damaged car because he/she has sold it and received 
money in return, and thus can no longer have it repaired, cannot therefore claim 
from the insurance undertaking covering the person responsible for the accident, 
as regards civil liability, payment of the costs of the repair which would have been 
necessary to restore the damaged vehicle to the state before the damage, and 
his/her right of action is limited to claiming from the insurance undertaking 
compensation for the real and actual loss to his/her property, that it is to say, the 
difference between the value of the vehicle in its state before the accident and the 
amount obtained from the sale of the vehicle, plus the reasonable costs of 
repairing the vehicle actually incurred and any other reasonable costs actually 
incurred as a result of the accident?’ 
Provisions of EU law cited 
4 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: Article 3, second, third and fourth paragraphs, and Article 18. 
Provisions of national law cited 
5 Ustawa z dnia 23 kwietnia 1964 r. – Kodeks cywilny (Law of 23 April 1964 
establishing the Civil Code): Articles 361, 363(1), 415, 480, 822(1) and (4), 
8241(1), and 826(1). 
Article 361: 
1. A person liable to pay compensation shall bear liability only for the normal 
consequences of the act or omission from which the damage resulted. 
2. Within the above limits, subject to any provision of this Law or contractual 
clause to the contrary, compensation for damage shall include losses suffered by 
the injured party and the profit which could have accrued to him/her had it not 
been for that damage. 
Article 363(1): 
Compensation for the damage should be effected, as the injured party chooses, 
either by restoration to the previous state or by payment of a corresponding sum of 
money. However, if restoration to the previous state is impossible or would 
involve excessive difficulty or costs for the party liable, the injured party’s right of 
action shall be limited to a monetary payment. 
Article 822 
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1. By a civil liability insurance contract, the insurer undertakes to pay 
compensation, as specified in the policy, for damage caused to third parties in 
respect of whom the policyholder or insured person bears liability. 
4. A person entitled to compensation for a contingency covered by a civil 
liability insurance policy may bring an action directly against the insurer. 
Article 8241(1): 
Unless otherwise agreed, the sum of money paid by the insurer under the 
insurance policy may not be greater than the damage suffered. 
6 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 Insurers’ Bureau): Articles 13(2), 19(1), 
22(1) and 34(1). 
Article 13(2): 
In the case of compulsory civil liability insurance, compensation shall be paid 
within the limits of the civil liability of the persons covered by the compulsory 
insurance, but not more than the sum insured as set out in the policy. 
Article 19(1): 
An injured party may, in respect of a contingency covered by a compulsory civil 
liability insurance policy, bring an action directly against the insurance company. 
The insurance undertaking shall inform the insured person of the action brought. 
The essential arguments of the parties in the main proceedings 
7 The applicants claim hypothetical (non-incurred) repair costs, while the defendant 
insurers contend that the applications should be dismissed. 
8 The applicants claim that, depending on their choice, compensation should be: 
either the difference in value between the damaged and non-damaged vehicle; or 
the actual costs incurred by them in repairing the vehicle; or the costs not incurred 
by them but which they would have had to incur if they had decided to restore the 
vehicle to full working order. In this regard, they consider that the choice is 
entirely optional and that therefore there is nothing to prevent a claim for 
compensation from being made for an amount of as yet non-incurred 
(hypothetical) repair costs, even though there is no intention or ability at all to 
incur them, which would lead to a situation in which the total value of their 
property (a non-repaired or more cheaply repaired vehicle or the price obtained 
from its sale, or an amount corresponding to the costs of full quality repair) would, 
as a result of the repair, be higher than before the damage. 
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9 The insurance undertakings submit, in essence, that compensation cannot exceed 
the amount of the damage actually suffered, that is to say, the difference between 
the value of the injured party’s property, as it would have been if the accident had 
not occurred, and the actual value of his/her property. According to this concept, 
the injured party may claim, as he/she chooses: either the amount corresponding 
to the difference between the value of the undamaged vehicle and the value of the 
vehicle damaged as a result of the accident – if he/she did not have the vehicle 
repaired and owns the wreck (or if he/she sold it – in which case the price 
obtained for the wreck may, if the injured party acted with the necessary 
diligence, be regarded as the value of the wreck); or an amount corresponding to 
the costs of repairing the vehicle (in so far as they are reasonable) – if he/she had 
it repaired using his/her own funds; or an amount corresponding to the sum of the 
abovementioned amounts – where the injured party had the vehicle partially 
repaired. However, in none of the above cases may the injured party enrich 
himself/herself as a result of the damage. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 Under national law there is no doubt as to the principle of full compensation. 
According to that principle, compensation is designed to restore the injured 
party’s property to the state which would have existed if the damage had not 
occurred. The compensation therefore covers both the loss suffered by the injured 
party (damnum emergens – losses of assets or increase in liabilities) and the lost 
profits (lucrum cessans) which he/she did not obtain as a result of the harmful 
event. What is known as the ‘differential method’ for determining the amount of 
compensation is generally accepted. According to this method, the amount of 
compensation corresponds to the difference between the (hypothetical) value of 
the injured party’s property which would have existed when the compensation 
was determined, if the damage had not occurred, and the actual value of the 
injured party’s property when the compensation is determined. The person liable 
for remedying the damage is liable for all the normal consequences of the conduct 
which gave rise to the damage, and thus not only the direct consequences, and not 
only those which became apparent immediately after the harmful event. 
11 In any event, national law allows the injured party to require the party liable for 
remedying the damage to restore the previous state instead of paying 
compensation (verba legis ‘payment of a corresponding sum of money’), and thus 
provide a benefit in kind, for example – in the case of damage to a vehicle – to 
have it repaired or exchanged for a non-damaged vehicle. Such an entitlement 
may be crucially important for injured parties who are unable to raise the funds in 
advance to repair their property (which they could obtain only later by way of 
compensation). 
12 Crucially, each of the two methods for remedying damage provided for in Polish 
law results in the injured party’s property being restored to the value that it would 
have had if the damage had not occurred, whilst at the same time not allowing 
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him/her to enrich himself/herself. This balances the interests of the injured parties 
(they have the possibility of reversing in full the property-related consequences of 
the damage suffered) and the persons liable for remedying the damage (they are 
not burdened beyond what is necessary to remedy the damage in full). 
13 Although the aforementioned principles do not generally give rise to any doubt, in 
cases concerning compensation for damage to vehicles in road accidents a line has 
been established in the case-law of the Polish courts which is at variance with 
those principles. According to this line of case-law, the owner of a car damaged 
through no fault of his/her own may claim from the civil liability insurer of the 
party responsible for the accident the hypothetical (non-incurred) costs that he/she 
might have had to incur if he/she had wanted to restore his/her vehicle to full 
working order. According to that case-law, it is irrelevant whether the injured 
party has had his/her vehicle repaired or intends to do so. It is even irrelevant 
whether he/she might do so since compensation in the amount of the costs of the 
hypothetical repair, significantly exceeding the damage to the injured party’s 
property determined by the differential method, is awarded even to injured parties 
who have already sold their car, and thus cannot, even hypothetically, have it 
repaired. 
14 The referring court notes that the line of case-law giving rise to doubt was 
established during the period of the socialist economy (the 1960s) under 
conditions in which there was no free market and associated financial services and 
an insufficient supply of cars, and it served to protect injured parties’ legitimate 
interests, which was necessary from a social point of view. 
15 In the current socio-economic reality, derogation from the general principles of 
compensation law in a specific category of cases, such as road accidents, leads to 
a number of negative consequences. First, it makes it possible for the injured party 
to enrich himself/herself as a result of the damage, which is unfair. Second, it may 
lead to the unjustified enrichment of garages carrying out non-cash repairs which, 
after acquiring from the injured parties a claim for remedy against the insurance 
undertaking, cannot claim market remuneration in the form of the actual costs 
which they incurred for the purpose of carrying out the repair, plus a reasonable 
margin, but, irrespective of the quality of the repair, which the injured party is 
often unable to verify, only the costs which they would have incurred if they had 
carried out the repair to the highest possible level of quality, which exceeds the 
market (and at the same time fair) value of the service actually provided. Third, as 
a result of the insurance undertakings paying compensation in an amount 
exceeding the damage actually suffered by the injured parties, the burden on 
vehicle owners by way of premiums for compulsory civil liability insurance 
increases. Fourth, this controversial case-law leads to a significant increase in the 
burden on the courts since insurers, in the hope of persuading the courts to change 
the line of case-law, are not voluntarily paying compensation in this controversial 
form and therefore injured parties are bringing the majority of cases before the 
courts. Fifth, a situation has arisen in which specialist undertakings (known as 
‘compensation law firms’), are contacting, through an organised network of 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-618/21 
 
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agents, injured parties who long ago received compensation and had the damage 
repaired to their satisfaction, and suggesting to them, in so far as the limitation 
period has not yet expired, that they could obtain additional money from the 
insurer in the form of the difference between the compensation calculated and 
paid by the insurance undertaking in accordance with the differential method (and 
thus in the amount of the costs actually incurred, or the loss of the value of the 
vehicle) and what is known as compensation in the amount of the ‘hypothetical 
costs’ – in return for payment to those firms of a substantial commission. Sixth, it 
leads to the establishment in the case-law of views in conflict with the legislation 
and the interpretation thereof in an area outside road accidents, which may lead to 
them being extended over time also to other fields. Seventh, unjustified advantage 
in the treatment of victims of road accidents (or of any persons seeking 
compensation from insurers) may constitute an infringement of the principle of 
equality before the law. 
16 The referring court is familiar with, and fully concurs with, the case-law of the 
Court of Justice, according to which the principles of civil liability, including 
compensation, are a matter for national law (see judgments of 23 October 2012, 
Marques Almeida, C-300/10, EU:C:2012:656, paragraphs 29 to 31, and of 20 May 
2021, K.S., C-707/19, EU:C:2021:405, paragraphs 23 to 27). However, the 
questions referred concern, firstly, the conflict between, on the one hand, the 
injured party’s enjoyment of ‘a direct right of action against the insurance 
undertaking’ (Article 18 of Directive 2009/103/EC), in conjunction with the fact 
that in Polish compensation law the injured party has two different rights of action 
against the insurance undertaking which he/she may exercise, that is to say, both a 
right of action for payment of compensation and a right of action for restoration in 
kind to the state before the accident and, on the other hand, the principle under 
Polish contract law that the benefit provided by the civil liability insurer is a 
‘payment’ and thus a pecuniary benefit (Article 822(1) of the Civil Code). 
17 The referring court supports the approach whereby EU law precludes national law 
which has the effect of depriving an injured party wishing to exercise a direct right 
of action against an insurance undertaking of one of the means of restoration 
under national law. It could be argued that this reduces the effectiveness of this 
important instrument which EU law confers on victims of road accidents because, 
on the one hand, its discourages victims from exercising it and, on the other hand, 
some of those victims who do exercise it experience certain difficulties in having 
to arrange the funds independently before having their vehicles repaired or in 
searching for a garage which will agree to carry out the repairs on a non-cash or 
deferred payment basis.  
18 Secondly, the referring court points out that the effectiveness (effect utile) of the 
EU instrument for protecting victims of road accidents, namely a direct right of 
action against the civil liability insurer, can be ensured in at least two ways: either 
by departing from the principle that the insurer’s payment is a pecuniary benefit – 
and thus granting the injured party the right to require that the insurance company 
repair the car, or by departing from the principle that the demand for restoration 
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be effected in kind – and thus granting the injured party only the right to demand 
from the insurance company the funds to arrange for the car to be repaired.  
19 In the view of the national court, whilst ensuring the effect utile of EU law 
requires that the victims of motor vehicle accidents be guaranteed the possibility 
of having their damaged vehicle repaired without having to arrange their own 
funds (if only temporarily) for that purpose, a requirement imposed on insurance 
undertakings to carry out the additional activity of performing accident repairs 
would constitute an excessive burden on those undertakings and could, as a result 
of the increase in the costs of their activity, lead to a rise in the amount of the 
premiums for compulsory civil liability insurance, and thus be detrimental to 
motor vehicle owners in general. However, it would appear that the insurance 
undertaking providing the injured parties with the funds necessary to arrange 
repairs independently does not place an excessive burden on the injured parties, 
having regard to the reality of today’s highly competitive market, which properly 
meets the demand for vehicle accident repair services. For those reasons, the court 
supports the view that EU law does not preclude national legislation such as that 
described in Question 2. 
20 Thirdly, the question arises as to whether EU law precludes a way of ensuring its 
effectiveness under national law which would consist – instead of allocating to the 
injured party an amount corresponding to the costs of a hypothetical reparation 
with no conditions – of a form of transfer of those funds which, on the one hand, 
would enable the repair to be carried out by injured parties who are unable to 
arrange the funds for that purpose independently but, on the other hand, would 
prevent the use of those funds for some other purpose, in particular to increase the 
injured parties’ property to a value exceeding the value which their property 
would have had if they had not been involved in the road accident. 
21 Fourthly, the referring court’s doubt concerns the case in which the injured party 
no longer owns the damaged car or cannot have it repaired (even hypothetically) 
for other reasons. In such a case, under the general provisions of national law 
he/she could not require the person responsible for the accident to restore the 
vehicle to the state obtaining prior to the damage. Of course, he/she could claim 
compensation which constituted the difference between the price which he/she 
received for the damaged vehicle and the price which he/she would have obtained 
if he/she had sold the non-damaged vehicle – which would ensure that his/her 
property is restored to the state in which it would have been had he/she not 
suffered road traffic damage. In the view of the referring court, EU law cannot 
therefore require, in such a situation, that the injured party himself/herself, who 
could not require that the person responsible for the accident repair his/her car, 
must have a right of action against the insurer for payment of the costs of that 
repair, which he/she will not be able, even hypothetically, to carry out.