Judgment — ECLI:EU:C:2026:258
Date: 2026-03-26
Language of the case: Croatian
Court formation: Ninth Chamber
Procedure: Reference for a preliminary ruling
Origin: Croatia

Summary C-357/24 – 1 
Case C-357/24 
Request for a preliminary ruling 
Date lodged: 
16 May 2024 
Referring court: 
Visoki trgovački sud Republike Hrvatske (Croatia) 
Date of the decision to refer: 
3 May 2024 
Appellant: 
Freistaat Bayern 
Respondent: 
Euroherc osiguranje d.d. 
  
I. Name of the referring court 
Referring court: Visoki trgovački sud Republike Hrvatske (Commercial Court of 
Appeal of the Republic of Croatia) 
[…] 
II. Parties to the main proceedings  
Appellant: Freistaat Bayern, […]Augsburg, Federal Republic of Germany, […] 
[…] 
Respondent: Euroherc osiguranje d.d.[,] Zagreb […] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 3. 5. 2024 – CASE C-357/24 
 
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III. Succinct presentation of the facts and procedure in the main 
proceedings 
1 The dispute concerns the appellant’s demand that the respondent compensate the 
damage the appellant suffered as a result of paying its employee (person X) sick 
pay for three periods of incapacity to work from 21 April 2015 until 21 May 2015, 
from 16 February 2016 until 15 April 2016, and from 8 November 2016 until 
5 January 2017. The benefits paid for these periods of incapacity to work 
amounted to EUR 28 825.83. 
2 Person X received treatment in Germany after being injured in a road accident that 
occurred on 18 April 2015 in Šibenik (Croatia). The accident involved a bicycle 
and a passenger car. The cyclist was person X, the appellant’s employee, and the 
passenger car was driven by person Y, the respondent’s insured with respect to 
compulsory third-party motor insurance. 
3 Person Y was found to be at fault, but at this stage of the proceedings his sole 
responsibility for causing the accident is still in dispute, as the respondent claims 
that person X, the appellant’s employee, also contributed to the accident. 
4 After the road accident, under the amicable settlement procedure, the respondent 
paid compensation to person X for actual damage caused (injuries sustained in the 
road accident), including compensation for non-pecuniary damage, benefits in 
connection with third-party assistance and care, compensation for damage to 
property, other costs and costs of legal representation amounting to 
HRK 43 433.43 or EUR 5 764.61 in total. 
5 The legal basis on which the appellant bases its claim is Regulation (EC) 
No 883/2004 of the European Parliament and of the Council of 29 April 2004 on 
the coordination of social security systems (‘Regulation No 883/2004’). The 
appellant believes that as the employer of person X, it is a ‘competent institution’ 
as referred to in Article 1(q)(iv) of Regulation No 883/2004, since the benefits at 
issue are those provided for in Article 3(1), and therefore the sick pay paid in this 
case falls within the concept of ‘sickness benefits’ referred to in Article 3(1)(a) of 
that regulation. 
6 The appellant relies on Article 85(1) of Regulation No 883/2004 and argues that 
by paying sick pay it is subrogated to the rights of its employee against the third 
party (the respondent as the insurer of person Y, who is responsible for the 
damage), and that such subrogation should be recognised in the present 
proceedings, since the case concerns benefits that person X received under 
German legislation due to injuries resulting from an accident that took place in 
Croatia. 
7 In that regard, the appellant refers to Article 6(1) of the Gesetz über die Zahlung 
des Arbeitsentgelts an Feiertagen und im Krankheitsfall (Bavarian Law on 
Payment of Benefits for Work on Public Holidays and in the Event of Sickness), 
which […] reads as follows: ‘If under this law, an employee can claim 
FREISTAAT BAYERN 
 
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compensation from a third party for loss of earnings due to incapacity to work, 
then this claim shall be transferred to the employer to the extent that the employer, 
under this law, continued to pay the employee’s remuneration and also the 
contributions due from the employee, which the employer pays to the Federal 
Labour Agency, the employer’s share of social security and care insurance 
contributions, and supplementary pension and survivors’ insurance contributions’. 
8 The respondent opposes those claims, arguing that Regulation No 883/2004 
cannot be applied to the facts of the case, primarily because it regulates the issue 
of social security coordination rather than compensation for indirect damage 
suffered by an employer due to the payment of sick pay to its employee, and that 
the appellant does not have the status of a competent institution, being solely an 
institution that deals with social security issues. 
9 The court of first instance accepted the appellant’s claims about the applicability 
of Regulation No 883/2024 in the present case without specifically giving grounds 
for its position; it dismissed all of the respondent’s pleas as unfounded and 
allowed the claim (Trgovački sud u Zagrebu (Zagreb Commercial Court) 
judgment […] of 21 November 2023). 
10 In its appeal against the judgment at first instance, the respondent argues that 
issues concerning the application of Regulation No 883/2004 to the facts of the 
case have not been resolved. Consequently, the court of appeal has doubts as to 
whether the appellant in this particular case can be considered a competent 
institution within the meaning of Article 1 of Regulation No 883/2004, and 
whether the concept of sickness benefits referred to in Article 3(1)(a) also includes 
benefits for the period of incapacity to work resulting from injuries sustained in 
another Member State, which are not benefits in respect of accidents at work and 
occupational diseases [Article 3(1)(f)]. The court of appeal also has doubts as to 
whether the respondent can be the person obliged to reimburse the benefits, since 
it is the insurer for third-party motor insurance. 
11 Assuming those questions are answered in the affirmative, a question arises 
regarding the application of Article 85(1) of Regulation 883/2004. Namely, 
Croatian substantive legislation in the area of compulsory motor insurance does 
not recognise the institution of compensation for so-called indirect damage 
suffered by a third party as a result of damage suffered by the injured party. The 
right to compensation for such damage must be expressly provided for in law, and 
to date, that right has only been provided for establishments engaged in the 
provision of health, pension or disability insurance. On the other hand, the 
employee enjoys the right to sickness benefits, which are paid by the employer or 
by the Hrvatski zavod za osiguranje (Croatian Health Insurance Fund) depending 
on the duration of incapacity to work, regardless of the cause of the illness, and 
the employer has no right of action against the party responsible for the damage or 
its insurer. The legal basis for the payment of the benefit under consideration 
during the period of temporary incapacity to work due to illness is the contract of 
employment and the employee’s compulsory health insurance. 
REQUEST FOR A PRELIMINARY RULING OF 3. 5. 2024 – CASE C-357/24 
 
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IV. Provisions of national law and case-law relied on 
12 Zakon o obveznim osiguranjima u prometu (Law on Compulsory Motor 
Insurance) (Narodne novine No 151/05, 36/09, 75/09, 76/13 and 152/14) in effect 
on the date of the event that caused the damage and the commencement of the 
main proceedings:  
Article 2 
(1) Compulsory motor insurance includes: 
[…]1 2. insurance for the owner or user (‘the owner’) of a vehicle against liability 
for damage caused to third parties (‘third-party motor insurance’).  
Article 3 
(1) The following terms are defined as follows within the meaning of this Law 
[…] 
8. ‘injured person’ is any person who has suffered damage to property and/or 
personal injury who is entitled to claim compensation under this Law […]. 
Article 11 
(1) The injured person may file a claim for compensation under the insurance 
referred to in Article 2(1) of this Law directly with the liable insurer. 
Article 22 
(1) The owner of a vehicle is required to take out liability insurance for damage 
that may be caused to third parties as a result of using the vehicle, in the event of 
death, bodily injury, damage to health, destruction of property or damage to 
property. 
Article 27 
(1) The insurance company is obliged to compensate establishments engaged in 
the provision of health, pension or disability insurance for actual damage within 
the scope of liability of its insured person and within the limits of the obligations 
assumed in the insurance contract. 
(2) Actual damage within the meaning of paragraph 1 above means the costs of 
medical treatment and other necessary costs incurred in accordance with the laws 
on health insurance as well as the proportionate amount of the old-age pension or 
disability pension of the injured person or his or her family members. 
 
1 […] means that a passage from the statute has been omitted as irrelevant. 
FREISTAAT BAYERN 
 
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13 Zakon o obveznom zdravstvenom osiguranju (Law on Compulsory Health 
Insurance) (Narodne novine No 80/13 and 137/13) in effect on the date of the 
event that caused the damage and the commencement of the main proceedings:  
Article 36 
(1) Within the framework of the rights arising from compulsory health 
insurance, insured persons are entitled to: 
1. benefit for the period of temporary incapacity to work or impediments to 
returning to work due to the use of health care or in connection with other 
circumstances listed in Article 39 of this Law (‘benefit’) […] 
Article 39 
An insured person is entitled to a benefit in connection with the use of health care 
under compulsory health insurance or in connection with other circumstances 
stipulated in this Law if: 
1. the insured person is temporarily unable to work due to illness or injury, or if 
he or she has been admitted to a medical facility for treatment or tests […] 
Article 40 
The benefit in connection with the use of health care referred to in Article 39(1) 
and (2) of this Law is paid to the insured person: 
1. by the legal or natural person – the employer – for the first 42 days of 
temporary incapacity to work, and also for as long as the insured person works in 
a third country to which the legal or natural person has delegated him or her or is 
himself or herself employed in a third country […]. 
Article 41 
[…] (3) The benefit for the period of temporary incapacity to work referred to in 
Article 39(1) and (2) of this Law from the 43rd day or the 8th day of temporary 
incapacity to work, respectively, is calculated and paid by the legal or natural 
person – the employer, with the proviso that the Fund 2 is obliged to reimburse the 
benefit paid within 45 days from the date of receipt of the request for its 
reimbursement. 
Article 136 
 
2 The Hrvatski zavod za zdravstveno osiguranje (Croatian Health Insurance Fund), which, under 
Article 3 of the Law on Compulsory Health Insurance, is responsible for compulsory health 
insurance in the Republic of Croatia. 
REQUEST FOR A PRELIMINARY RULING OF 3. 5. 2024 – CASE C-357/24 
 
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(1) The Fund is obliged to seek compensation for the damage caused from the 
person who caused the illness, injury or death or the insured person. 
(2) The legal or natural person – the employer – is liable for the damage caused 
to the Fund by an employee in the course of his or her work or in connection with 
his or her work in the cases listed in paragraph 1 above. 
(3) In the cases listed in paragraph 2 above, the Fund is also obliged to seek 
compensation directly from the employee if the damage was caused deliberately 
or through gross negligence. 
(4) Where the Fund seeks compensation from a legal or natural person and from 
an employee, they are jointly and severally liable for the damage. 
Article 140 
In the cases listed in Article 136 of this Law, the Fund is also obliged to seek 
compensation for the damage caused directly from the insurer who provides 
insurance against liability for damage caused to third parties to the persons 
referred to therein, in accordance with the laws on compulsory insurance against 
that risk. 
Article 142 
The Fund is obliged to seek compensation in the cases provided for in this Law 
irrespective of whether the damage was caused by the payment of benefits to 
which the insured person is entitled from the funds accumulated under 
compulsory health insurance, that is to say, from state budget funds.  
Article 143 
The compensation that the Fund is entitled to claim in the cases referred to in 
Articles 135 and 136 and in Articles 138–142 of this Law includes the costs of 
medical treatment and other services as well as cash and other benefits paid by the 
Fund. 
14 The legal position according to which neither the employer nor its liability insurer 
are entitled to compensation for the benefits paid due to an employee’s temporary 
incapacity to work caused by an accident at work is clearly set out in the current 
case-law of the Vrhovni sud Republike Hrvatske (Supreme Court of the Republic 
of Croatia). By way of confirmation, the judgment […] of 18 March 2014 is 
enclosed with the application. It follows from that judgment that employers do not 
have the right to seek compensation from the entity responsible for the injury or 
its insurer in respect of the amount they paid to their employee for the period of 
sick leave resulting from the injury. Nor do they have that right in the case of an 
accident at work or occupational disease. Such a right is not available to the 
employer’s insurer either, even though an obligation has been established for the 
FREISTAAT BAYERN 
 
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employer to insure itself against liability for the accidents at work and 
occupational diseases of its employees. 
15 The relevant passage of the above judgment reads: 
‘An employer who, acting in accordance with the aforementioned legal 
provisions, 3 pays its employee a benefit for a period of sick leave due to an 
accident at work caused by a third party (the entity responsible for the damage), is 
not, under the general principles of liability for damages, a party to a non-
contractual liability relationship in respect of the damage arising from the 
employee’s injuries, because the action that caused the damage in question was 
not directed at that employer. In a situation where the action that caused the 
damage was directed at a certain person, and the effects of the action that caused 
the damage also affected another person, in order for that other person to have a 
right to compensation, that other person’s right must be expressly provided for in 
law. 
By paying its employee […] a benefit for a period of sick leave due to an accident 
at work, the applicant’s insurer […] fulfilled its statutory obligation under 
Articles 51 and 26 of the Zakon o zdravstvenom osiguranju (Law on Health 
Insurance). 
No provision of the Law on Health Insurance provides for recourse by the 
employer for benefits paid to an employee due to an accident at work against the 
person who is responsible for the damage, and that right, by virtue of Article 85(1) 
of that Law, is expressly vested in the Croatian Health Insurance Fund’. 
V. Succinct presentation of the reasoning in the request for a preliminary 
ruling 
16 Thus, in a situation where Croatian legislation does not provide for a right to 
compensation for indirect damage suffered by an employer as a result of the 
payment of benefits for the period of its employee’s incapacity to work, the 
question arises as to whether, on the basis of Article 85(1) of Regulation 
No 883/2004, a German employer can subrogate to the rights of its employee or 
even make a direct claim for compensation against a third party, in this case 
against the insurer of the person responsible for the occurrence and consequences 
of the event that caused the damage. 
17 The Court of Justice has interpreted Article 93(1) of Council Regulation (EEC) 
No 1408/71 of 14 June 1971, which corresponds in its content to Article 85(1) of 
Regulation No 883/2004, in two judgments (C-397/96 and C-428/92) but in the 
opinion of the referring court, those judgments do not answer the question of 
 
3 The Zakon o zdravstvenom osiguranju (Law on Health Insurance) (Narodne novine No 75/93, 
55/96 and 1/97 – consolidated text, 109/07, 13/98, 88/98, 150/98, 10/99, 34/99, 69/00, 59/01, 
82/01) is referred to here. 
REQUEST FOR A PRELIMINARY RULING OF 3. 5. 2024 – CASE C-357/24 
 
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whether an employer can claim recourse in connection with the benefits it has 
paid as the institution responsible for paying benefits if the injured party cannot 
claim such compensation in the Member State where the injury occurred, that is to 
say, there is no legal basis for claiming such compensation. 
18 The Court is currently considering case C-7/24, in which a Danish court has 
requested a preliminary ruling in regard to the interpretation of Article 85(1) of 
Regulation No 883/2004. It appears from the contents of the Danish request, 
published in the form of a working document, that the main proceedings are 
similar to the main proceedings in the present case. An important difference is that 
the applicants in the Danish case are German public pension insurance companies 
(legally obliged social security institutions), while in the case before the Croatian 
court, the appellant is the injured person’s employer. The defendant, similarly to 
the respondent in the present case before the Croatian court, is a Danish insurance 
company. The Danish request likewise raises the question of whether the 
substantive rules of the law of the Member State in which the injury occurred can 
limit the recourse claim of the obliged social security institution where the social 
security benefits for which recovery is sought are not identical, or at least not 
comparable in nature, to the claim which the injured party could recover under 
those substantive rules (paragraph 58 of the request for a preliminary ruling in 
Case C-7/24). 
VI. Question referred for a preliminary ruling 
In light of the above, the Commercial Court of Appeal of the Republic of Croatia, 
as the court of second instance in the present case, pursuant to Article 19(3)(b) 
TEU and Article 267 TFEU, considers that there is a need to refer the following 
question to the Court of Justice of the European Union for a preliminary ruling: 
Must Article 85(1) of Regulation (EC) No 883/2004 of the European Parliament 
and of the Council of 29 April 2004 on the coordination of social security systems 
be interpreted as meaning that in order for an employer, as the institution obliged 
to pay benefits, to have a recourse claim for sickness benefits paid to an employee 
for an injury resulting from events that occurred in the territory of another 
Member State against the third party liable to provide compensation for the injury 
or against its civil liability insurer, it is necessary for there to exist a legal basis for 
claiming such compensation in the Member State where the injury occurred?  
Zagreb, 3 April 2024 
[…] 
Attachments: 
FREISTAAT BAYERN 
 
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- copies of the first-instance judgment, the appeal, and relevant excerpts from the 
case file of the court of first instance  
- a copy of the judgment in Rev-x, Ref. No 1048/13-2 of 18 March 2014 
[…]