Opinion of the Advocate General — ECLI:EU:C:2026:352
Date: 2026-04-23
Language of the case: Italian

summary procedures such as those relating to the foreclosure of mortgages and the issue or enforcement of payments orders. (48) However, it has also made clear that they apply in the context of ordinary proceedings, which may have involved several stages in which consumers participated and which were unaffected by any restrictive rule of national procedural law which would make it excessively difficult or impossible for those consumers to assert their rights. Indeed, it follows from the Court’s recent judgment in Soledil (which concerned a case involving several stages of ordinary proceedings with consumers’ participation) that it was the (mere) failure on the part of the national court to examine the possible unfairness of the relevant contractual terms which resulted in such an excessive difficulty or impossibility. (49) 66. Having recalled those elements, I will now turn to the crux of the matter to examine whether the principles described above, developed in the field of consumer protection, must apply by analogy to the circumstances in the main proceedings, with the result that the national effects of res judicata must be disregarded. 3. Res judicata in the circumstances of the present case 67. In order to take a position on the first question referred, as summarised in the previous point, I will consider in more depth the rationale of the consumer-related res judicata exception which, as I will explain, is closely related to the ex officio examination obligation also developed in the same field of law (a). On that basis, I will explain that because the latter obligation does not apply, in my view, in the area of law under consideration here, neither can the above res judicata exception apply (b). For the sake of completeness, should the Court disagree with my analysis, I will address the concept of the consumer’s ‘complete inaction’ as alluded to in the second question referred (c), before making some closing remarks about the relationship between Directive 93/13 and the field of motor vehicle civil liability insurance (d). (a) The two-pronged rationale of the res judicata exception in consumer matters 68. I have already observed that the protection of consumers required under Directive 93/13 has led the Court progressively to develop what has become a broadly defined exception to the rule of res judicata. The Court has explained, in essence, that without that exception, that protection would be ‘incomplete and insufficient’ where the courts have failed to examine the possible unfairness of the relevant contractual terms. (50) 69. Given that, in particular, passengers who are victims of road traffic accidents are considered to be vulnerable parties, (51) the question arises as to whether the protection they are to receive under EU legislation in the area of motor vehicle liability insurance must lead to the same res judicata exception being applicable. 70. Cattolica and the Italian and Finnish Governments argue in favour of a negative reply. The Commission acknowledges the arguments for and against such an extended application while expressing a preference, at the hearing, for the consumer-related res judicata exception to be extended to cover the area considered here. 71. I note that, as a first step, the above matter can be addressed by reference to the traditional analysis of the limits that the European Union can impose on the Member States’ procedural autonomy (as observed in point 58 above). Viewed from that perspective, I note that there is no indication, in the order for reference, of any restrictive rule of national law that would make it excessively difficult or impossible for the victims of road traffic accidents (or their heirs) to enforce their rights. (52) 72. However, I have already explained that the key element flowing from the Court’s case-law relating to res judicata in the context of Directive 93/13 is the clarification that, where a national court has failed adequately to review the contractual terms, (53) the effectiveness of the protection to be granted to the consumer is considered to have been undermined. In other words, the conclusion that the principle of effectiveness has been infringed (which requires the effects of res judicata to be disregarded) does not depend on the identification of a particularly restrictive rule of procedure that would be ‘responsible’ for the consumer’s difficulties in protecting his or her rights. The mere failure on the part of a national court to review, of its own motion where necessary, the possible unfairness of the relevant contractual term suffices to make that conclusion, irrespective of whether the consumer has faced specific procedural hurdles (such as an extremely short limitation period to lodge an action or to file a defence) making it ‘excessively difficult’ for him or her to state his or her case or defend himself or herself appropriately and to raise the question of the unfairness of the term at issue. I recall that that conclusion also stands, irrespective of whether the relevant proceedings were, by their nature, particularly expedient (the issue or enforcement of payment orders, mortgage proceedings) or whether they were ordinary. (54) 73. I also recall that both obligations (to conduct an ex officio examination and, if no such review has taken place, to disregard the effects of res judicata) emerged progressively within a legal framework that reflects concerns of public policy or public interest, (55) in which both obligations are closely linked. Indeed, the Court has observed that the ‘obligation to carry out … an ex officio examination is justified by the nature and importance of the public interest underlying the protection which Directive 93/13 confers on consumers, with the result that an effective review of the possible unfairness of contractual terms, as required by that directive, could not be guaranteed if the force of res judicata were to be extended to judicial decisions which do not indicate that such a review has been conducted’. (56) 74. It is true that the existence of an obligation to conduct an ex officio examination of the enforceability of the exclusion clause at issue is not called into question in the main proceedings, because the appellants raised the matter themselves before the referring court. (57) That said, it follows from the above that, in order to conclude that a res judicata exception applies in the context of the Second Directive, it is necessary to establish, first of all, that the public interest underlying that directive is such as to require national courts to examine of their own motion the enforceability of a particular contractual clause included in an insurance policy (a matter which, as the Commission noted, has not yet been considered in the Court’s case-law). In other words, the conclusion as to the obligation to disregard the effects of res judicata cannot be reached without simultaneously identifying an obligation for the national courts to raise the relevant point of law of their own motion. 75. I will therefore turn to the question whether the rationale of the protection to be afforded to victims of road traffic accidents triggers an obligation for the national courts to examine, of their own motion, whether an insurer can rely, vis-à-vis such victims, on a clause excluding from the insurance cover loss or injury caused in certain situations (such as in the case of illegal transport). That clarification will allow me to address the question whether, moreover, under that legislative framework, an exceptional obligation to disregard the effects of res judicata arises as well. (b) The two-pronged rationale in the field of motor vehicle liability insurance 76. As a preliminary point, I recall that there is no general obligation under EU law requiring national courts to raise, of their own motion, an infringement of EU law, irrespective of the importance of the provision concerned to the EU legal order, where the parties are given a genuine opportunity to raise such a plea before a national court. (58) That position can be explained by the fact that, in civil litigation in particular, it is typically for the parties to take the initiative, while the courts are not required to raise a particular plea of their own motion where that would mean going beyond the scope of the action. Consequently, the Court has required the national courts to act of their own motion as a matter of EU law only in exceptional cases when justified by the public interest. (59) 77. I have already explained that that is the case, in particular, in the field of consumer protection, more specifically in the situations falling within the scope of Directive 93/13. The Court has extended that obligation, moreover, to situations under other acts of EU consumer law. (60) The field of consumer protection is, for that matter and to my knowledge, the only field within the broader area of civil matters governed by EU law in which the Court has found that obligation to exist (in cases when no such obligation is explicitly provided for by the relevant EU legislation). 78. Further exceptions have been defined in the field of immigration and asylum law, where the Court has justified that approach by the absolute nature of the right to be protected (prohibition of torture or inhuman and degrading treatment or punishment in the context of the adoption of a return decision), (61) by its importance in combination with the specific legislative regime (the right to liberty in the context of detention in immigration and asylum matters), (62) and by the legislative definition of the harmonised scope of judicial review (applications for international protection rejected based on the concept of ‘safe country of origin’). (63) 79. By contrast, the Court declined to reach the same conclusion in the judgment in K.B. and F.S. in the context of criminal proceedings in which the suspects were not properly informed of their procedural rights (in particular of the right not to incriminate oneself). (64) The Court explicitly refused to transpose to that area of law the principles developed under Directive 93/13, while explaining ‘that the legal relationships involved in a consumer protection context differ from those in criminal proceedings … to such an extent that the principles established in the field of unfair terms cannot simply be applied to procedural safeguards in criminal proceedings’. (65) 80. In the light of the above, where should one situate the area of law concerned here? 81. To answer that question, it is useful to recall that the specificity of ‘the principles established in the field of unfair terms’, alluded to in the judgment in K.B. and F.S., hinges on the need identified by the Court to replace the balance between the parties as established by the contract with genuine equality, that need stemming from the weaker position of consumers as regards knowledge and bargaining power vis-à-vis the seller or supplier. 82. Against that background, in order for the res judicata exception under consideration to be ‘transposed’ to the field of motor vehicle liability insurance, the same or similar protective rationale would thus have to be identified. 83. As the Commission argued, in principle there is no doubt that the rule set out in Article 2(1) of the Second Directive constitutes an expression of a robust legislative policy promoting the protection of victims of road traffic accidents. That is, as already observed, one of the two main objectives of that legislation (66) which ‘has continuously been pursued and reinforced’. (67) While specific elements of that protection have been added during the period post-dating the facts of the case in the main proceedings, that emphasis clearly existed during the material time, as evidenced for instance by the fifth recital of the Third Directive, which identifies passengers as a ‘particularly vulnerable category of potential victims’. (68) 84. That objective may admittedly lend itself to be viewed as reflecting a particularly important public policy by analogy with the Court’s considerations concerning the nature of the policy of protecting consumers (see point 63 above). 85. If that is accepted, one could further state that when it comes to the criteria of lesser ‘knowledge and bargaining power’, relied on in the context of Directive 93/13, victims of road traffic accidents are, in fact, in an even more difficult situation than consumers. Indeed, when the victims are genuine third parties vis-à-vis the vehicle involved in the accident (which is, in my view, the typical scenario), they will not know the identity of the insurer (let alone the content of the insurance policy). (69) That could further lead to the suggestion that, without an ex officio judicial examination of the enforceability of the terms of that policy, the protection to which those persons are entitled would be ‘incomplete and insufficient’ (70) (by analogy with the findings made in relation to matters falling under, in particular, Directive 93/13). 86. That said, for the following reasons, I would advise against embracing that position. 87. In that respect, first, there is no doubt that the victims of road traffic accidents may face difficult and tragic situations over which they have, in principle, no control. (71) That vulnerable position is the very reason why the EU legislature has progressively reinforced various aspects of their protection. However, the identified need to protect a person in a situation of vulnerability is insufficient per se to trigger an obligation requiring the national courts to raise a point of law of their own motion. That, in my view, clearly follows from the judgment in K.B. and F.S., discussed above, which, to summarise, concerned a person suspected of criminal activity whose procedural rights had been infringed by law enforcement authorities. There is no doubt that a person facing such authorities will find himself or herself in a situation of relative weakness, while the consequences for that person of the illegal conduct of the State authorities may be particularly serious. Nonetheless, the obligation to conduct an ex officio examination of the procedural flaw at issue could not be imposed based on the principles deriving from Directive 93/13 on account of, in essence, the specificity of the context in which those principles were developed, as observed above. 88. In that respect, in contrast to Directive 93/13 and as the Italian Government argued, in essence, at the hearing, the rules in the field of motor vehicle liability insurance do not aim to maintain a balance between the parties’ contractual rights and obligations and to prevent the use of the contractual terms, due to those terms causing, ‘contrary to the requirement of good faith, … a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer’. (72) 89. Indeed, although Article 2(1) of the Second Directive requires the relative nullity (unenforceability vis-à-vis the victims) of certain terms included in an insurance policy, it does so not to correct a contractual imbalance between the insurer and a third-party victim (because, in a typical scenario, there is simply no contract between those two parties (73)), but to protect the victim against the legal effects of those terms (which would prevent the victim from being compensated for the losses and injuries caused) irrespective of any contractual relationship between those two parties. That specific protective logic is particularly obvious when one considers the part of Article 2(1) of the Second Directive that requires the relative nullity (unenforceability) of the statutory provisions with the exclusionary effects described in that provision (and in point 52 above) – statutory provisions which exist, by their very nature, independently of the parties’ will. 90. In connection with the above, the protection of third-party victims does not mean that the terms (or statutory provisions) excluding, in particular, illegal transport from the insurance cover must be regarded as unlawful per se. On the contrary, the fact that an accident resulted from illegal transport remains, in my view, a relevant factor in the relationship between the insurer and the policyholder (because the legal effects are to be excluded only in relation to the victim). (74) 91. Viewed from that perspective, the logic governing Article 6(1) of Directive 93/13, on the one hand, and Article 2(1) of the Second Directive, on the other, are rather different in terms of the ‘penalty’ that they require in respect of ‘problematic’ contractual terms. While the former provision requires the nullity of the unfair contractual term, and possibly (where necessary) of the entire contract (because of its inherent unlawfulness), that is not the result sought by Article 2(1) of the Second Directive, which only requires certain terms to be prevented from producing legal effects vis-à-vis the victims of road traffic accidents. 92. Again, that difference in the logic underlying Article 6(1) of Directive 93/13 and Article 2(1) of the Second Directive is not, in absolute terms, incompatible with the proposition that an ex officio judicial examination should be required to ensure that a victim is adequately protected. There is, as already observed, the same (if not worse) asymmetry of information in the relationship between the victim and the insurer compared to those falling under Directive 93/13. However, that difference is, in my view, reason enough to support the argument that the protective logic specific to Directive 93/13, with its particular legal implications, simply does not exist under the EU rules on motor vehicle liability insurance. 93. Second, irrespective of the above, I recall that the requirement to disregard the effects of res judicata has been linked by the Court to the obligation addressed to the Member States in Article 7(1) of Directive 93/13. That provision requires the Member States to ensure that ‘adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers’ (emphasis added). No such obligation is imposed in respect of exclusion clauses such as the one at issue here, as observed by the Italian and Finnish Governments and as acknowledged by the Commission. 94. Indeed, Article 2(1) of the Second Directive requires the taking of ‘necessary measures to ensure that any statutory provision or any contractual clause contained in an insurance policy’ which excludes, in particular, illegal transportation from the insurance cover ‘shall … be deemed to be void in respect of claims by third parties who have been victims of an accident’ (emphasis added). That wording is clearly closer to that embraced by Article 6(1) of Directive 93/13, (75) in that they both aim to ensure that the term at issue does not produce binding effects (at least) vis-à-vis the vulnerable party concerned (in a given case). 95. By contrast, Article 2(1) of the Second Directive lacks the more systemic and dissuasive dimension of Article 7(1) of Directive 93/13, which exhorts the Member States to ensure that the use of unfair terms is prevented (in general). Viewed from that perspective, the res judicata exception may be construed as fulfilling the function of deterring sellers or suppliers from including unfair terms in contracts by denying them the benefit of legal certainty that would otherwise follow from the final nature of a judicial determination in their favour (a determination made without an examination of whether the relevant term is unfair within the meaning of Directive 93/13). That dimension is not present in Article 2(1) of the Second Directive because, as already observed, the objective pursued by it is to ensure that a third-party victim, who (typically) has no contractual relationship with the insurer, is compensated by the latter, irrespective of any exclusion clause. By contrast, that provision does not seek to impose a ban on exclusion clauses altogether. 96. Given that the Court’s case-law concerning the res judicata reversal requirement is attached to that specific preventive and systemic aspect of the regime of Directive 93/13 (to ensure that unfair terms are not used in general, in addition to the exclusion of their legal effects in a given case) and that that position constitutes an exception to the main rule under which the final nature of a judicial determination must be respected, I consider that a reversal of res judicata cannot be required in the circumstances of the case in the main proceedings where no similar systemic objective is pursued. (76) 97. Third and finally, it seems to me that when the Court has required a step as far-reaching as an ex officio examination (and, failing which, the reversal of res judicata) in a situation that, in principle, falls within the procedural autonomy of the Member States (in the absence of any legislative provision on the matter), it has necessarily relied on the specific role of consumers in the functioning of the internal market (when acquiring goods and services) (77) as well as on the premiss that their lack of awareness of the applicable rules may deter them from purchasing goods or services in another Member State. (78) At the same time, the existence of harmonised rules on unfair terms was identified as an important tool to maintain undistorted competition (79) and to enhance competition among suppliers, thereby increasing the choice available to consumers. (80) 98. Legislation in the field of motor vehicle liability insurance is, of course, also a tool contributing to the functioning of the internal market and, more particularly, to the free movement of vehicles and persons, as acknowledged in the respective directives. (81) However, it has also been acknowledged that that harmonisation, while pursuing the twofold objective recalled in point 49 above (to ensure the free movement of vehicles and of persons travelling in them and to guarantee comparable treatment for the victims of accidents), is mainly focused on the protection of victims of road traffic accidents, that also being the stated purpose of the (previously existent) frontier controls of compulsory insurance cover against civil liability in respect of the use of motor vehicles. (82) In the same vein, the Commission observed at the hearing that the obligation of compulsory coverage (ensuring that all vehicles normally based in a given Member State’s territory are insured against civil liability) (83) and the direct right of action that victims must have against the insurer of the person responsible (a requirement that was added subsequently to the facts in the main proceedings) (84) constitute the central elements of the legislation at issue. 99. Without prejudice to the importance of that objective and the personal hardship that road traffic accidents bring about for victims, it seems to me that that rationale, although again related to the internal market, is not as deeply embedded in the pursuance of the internal market objective as in the case of the harmonisation sought by Directive 93/13 (which, as explained, directly and immediately enhances commercial transactions). That rationale is, at any rate and again, simply different in what it aims to achieve. That, together with the abovementioned exceptional derogation that the requirement both of an ex officio examination and of the reversal of res judicata represent from the standard operation of law, provides further justification as to why those derogations developed under, in particular, Directive 93/13 should not be extended to the area of motor vehicle liability insurance. 100. For all those reasons, and given that the legislature did not choose to include, in the latter legislative framework, a provision on the scope of judicial review, I am of the view that whether an obligation to carry out an ex officio examination arises is better approached through the lens of the principle of effectiveness (and equivalence), as traditionally conceived and recalled in point 58 above. In accordance with that approach, the obligation of the courts to raise the matter of their own motion would arise only where the examination of the applicable rule of procedure leads to the conclusion that the victim concerned has not been given a genuine opportunity to raise such a plea before a national court. The same considerations should then apply mutatis mutandis to the question whether the effects of res judicata must be disregarded where the relative nullity of a clause such as that at issue in the main proceedings has not been reviewed, because, as explained above, both aspects are closely related. 101. In the light of the above considerations, and in reply to the first question referred, I am of the view that Article 2(1) of the Second Directive should be interpreted as not precluding national legislation which, by reason of the fact that a judgment has acquired the force of res judicata, prevents a party from raising for the first time, at a subsequent stage of the same judicial proceedings, a plea that a clause, included in a motor vehicle civil liability insurance policy, is void (unenforceable) within the meaning of that provision, provided that no rule of national procedural law has made it excessively difficult or impossible for that party to raise that plea at an earlier stage of the proceedings, at which that question could have been examined by the national courts. (c) The scenario of a party’s ‘complete inaction’ 102. For the sake of completeness, and should the Court disagree with my analysis above, I shall now turn to the second question in which the referring court enquires whether the assessment of the obligation to disregard the effects of res judicata under national law – were that obligation to be established – is affected by the fact that, according to the referring court, the appellants in the main proceedings ‘acted in a wholly passive manner’ when they failed to challenge the applicability of the exclusion clause at an earlier stage of the judicial proceedings. 103. The reply to that question is, in my view, rather straightforward. 104. First, the concept of ‘total inertia’ (or ‘complete inaction’) was developed in the judgment in Asturcom Telecomunicaciones and subsequent case-law in the context of the exceptional obligation to disregard the national effects of res judicata. (85) As the referring court observes, it denotes, more specifically, ‘an exception to that exception’. By way of explanation, where the exceptional obligation for a court to disregard the effects of res judicata in order to protect a consumer arises in principle, but that consumer has remained, in the proceedings concerned, completely inactive, the obligation to disregard the force of res judicata does not apply and the situation reverts to the standard situation in which the effects of res judicata are left intact. 105. However, and second, it is not entirely clear to me what circumstances could lead to such a standard situation being effectively ‘restored’, given that the obligation to raise ex officio the possible unfairness of contractual terms appears to apply at any stage of the judicial proceedings, which renders the ‘inaction’ of the consumer irrelevant in principle, at least in the judicial proceedings that are still ongoing (such as in the main proceedings here). 106. Nevertheless, that matter does not need to be discussed further in the present circumstances because, third, the situation of ‘complete inaction’ within the meaning of the relevant case-law has clearly not occurred. 107. Indeed, that concept refers to a consumer who is literally absent from the proceedings and does not defend his or her case. It does not refer to a consumer who actively takes part in the proceedings, albeit without raising the disputed point of law. In other words, it does not refer to the failure by the party concerned to raise a specific plea in the proceedings, but rather to the failure to appear in those proceedings at all. For that matter, if that concept were to refer to the failure to raise a specific plea, the obligation of the national courts to raise it of their own motion would be redundant. (86) 108. In that respect, it follows from the order for reference that the appellants in the main proceedings played an active part in the previous stages of those proceedings, despite not raising the alleged illegality of the exclusion clause. Under those circumstances, they cannot be considered to have remained ‘completely inactive’ within the meaning set out above. (d) Postscript: possible overlap between both areas concerned 109. Before bringing my analysis to a close, there is one last systemic or contextual aspect to be addressed which concerns, as indicated above, the possible interrelation between the legislation in the field of motor vehicle liability insurance and Directive 93/13. 110. There is, in my view, no doubt that insurance policies in that field may, in general, be classified as consumer contracts within the meaning of Directive 93/13, where the applicable conditions for such a classification are satisfied, as in principle was observed by the Commission in its written pleadings and also by the Italian Government at the hearing. 111. Furthermore, the facts of the case in the main proceedings show that there may be situations in which the third-party victim is also the party to the relevant insurance contract which, if the applicable conditions are satisfied, makes that contract ‘eligible’ to fall under the scope of Directive 93/13. (87) 112. Against that background, a certain discrepancy may arise in terms of the procedural options that will be open to such a party, as opposed to other victims of road traffic accidents. Indeed, a victim who is also the policyholder will be automatically entitled to rely on the procedural developments in terms of the ex officio examination or the reversal of res judicata developed under Directive 93/13, provided again that the insurance policy at issue satisfies the conditions in order to be classified as a contract between a consumer and a seller or supplier (within the meaning of that directive). By contrast, that option will not be open to other victims if those conditions are not satisfied or if the victim is not the policyholder. (88) 113. I do not think that that affects the result of the previous analysis. 114. First of all, any plea that may potentially be raised under Directive 93/13 would have to be framed, for obvious reasons, in terms of unfairness within the meaning of that directive. That aspect of the examination of the given contractual term is also clearly different from those governed by, in particular, Article 2(1) of the Second Directive. (89) 115. That notwithstanding, the fact that a victim of a road traffic accident, who is the policyholder and a consumer within the meaning of Directive 93/13, could in theory rely on that directive to trigger the specific procedural consequences flowing therefrom (to obtain a new examination of a given term in an insurance policy) – where such a procedural option is not open to other victims – is not in itself a reason to ‘export’ the res judicata exception from the area covered by Directive 93/13 to the area under consideration here (to prevent possible inequality in the procedural treatment of victims of road traffic accidents). Such a procedural discrepancy is rather a contingency resulting from the overlap of two regulatory regimes in the particular circumstances of a given case. By contrast, that is not a reason to extend principles that have been developed in one field of law, by reference to the specific features thereof, to another field of law in which those features do not exist. V. Conclusion 116. I suggest that the Court give the following reply to the Corte suprema di cassazione (Supreme Court of Cassation, Italy): Article 2(1) of Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles must be interpreted as not precluding national legislation which, by reason of the fact that a judgment has acquired the force of res judicata, prevents a party from raising for the first time at a subsequent stage of the same judicial proceedings a plea that a clause, included in a motor vehicle civil liability insurance policy, is void (unenforceable) within the meaning of that provision, provided that no rule of national procedural law has made it excessively difficult or impossible for that party to raise that plea at an earlier stage of the proceedings at which that question could have been examined by the national courts. 1 Original language: English. 2 Second Council Directive of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1984 L 8, p. 17) (‘the Second Directive’). 3 The English-language version of that provision refers to the obligation to ensure that the terms at issue are ‘deemed to be void in respect of claims by third parties who have been victims of an accident’; the French-language version refers to any provision or clause having to be ‘réputée sans effet en ce qui concerne le recours des tiers victimes d’un sinistre’. As I will explain later, that obligation therefore does not aim to obtain the nullity (in absolute terms) of the provision or clause in question, but rather to ensure that it produces no legal effects in respect of a certain category of persons. It seems to me that, in some legal orders, that situation can be referred to as ‘relative nullity’ or ‘unenforceability’. 4 Directive 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), in particular Article 13(1)(c) thereof. 5 Directive 2009/103 codified a fragmented regime that had progressively evolved through several directives, listed in recital 1 thereof. Those previous directives governed different aspects of the system of motor vehicle liability insurance and, depending on the date of an accident, could apply in parallel to a given case. See, for instance, judgment of 14 September 2017, Delgado Mendes (C‑503/16, EU:C:2017:681, paragraph 31). 6 I would add that the Second Directive applies alongside the First and Third Directives, referred to in points 5 and 12 below, in view of the date of the accident. 7 See judgments of 9 April 2024, Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision) (C‑582/21, ‘the judgment in Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision)’, EU:C:2024:282), and of 18 December 2025, Soledil (C‑320/24, ‘the judgment in Soledil’, EU:C:2025:993). 8 Council Directive of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability (OJ English Special Edition: Series I Volume 1972(II), p. 360) (‘the First Directive’). 9 Third Council Directive of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1990 L 129, p. 33) (‘the Third Directive’). 10 As I understand it, Cattolica’s claim thus concerns the repayment, by PA’s relatives, of sums actually paid to them as well as a declaratory ruling that Cattolica was not required to pay them any outstanding sums. The specific classification of those two aspects of the action appears at any rate to be irrelevant for the purposes of assessing the present request for a preliminary ruling. 11 Order of the President of the Court of 8 April 2025, Società Cattolica di Assicurazione (C‑17/25, EU:C:2025:276, paragraphs 6 and 7). 12 Council Directive of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29). 13 Judgments of 16 July 2020, Governo della Repubblica italiana (Status of Italian magistrates) (C‑658/18, EU:C:2020:572, paragraph 61 and the case-law cited), and of 29 July 2024, Valančius (C‑119/23, EU:C:2024:653, paragraph 39 and the case-law cited). 14 See, for instance, judgment of 18 December 2025, Procura della Repubblica presso il Tribunale di Firenze (C‑325/24, EU:C:2025:989, paragraph 36 and the case-law cited). 15 Or where the problem is hypothetical or where the Court does not have the necessary factual and legal information to provide a useful answer; see, for instance, ibidem, paragraph 37 and the case-law cited. 16 See, for instance, my Opinion in Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision) (C‑582/21, ‘my Opinion in Profi Credit Polska’, EU:C:2023:674, points 85 to 87 and the case-law cited). 17 Judgment of 7 August 2018, Smith (C‑122/17, EU:C:2018:631, paragraph 44 and the case-law cited), concerning the Third Directive. 18 Judgments of 30 September 2003, Köbler (C‑224/01, EU:C:2003:513, paragraphs 50 to 53), and of 19 April 2007, Farrell (C‑356/05, ‘the judgment in Farrell’, EU:C:2007:229, paragraphs 40 to 43); see also my Opinions in Soledil (C‑320/24, EU:C:2025:469, point 83) and in Centro Petroli Roma – II (C‑386/24, EU:C:2025:775, points 44 to 48). 19 See point 39 and footnote 17 above. 20 See point (d) of Section 3 of the present subsection of this Opinion. 21 See, for instance, judgment of 30 April 2025, Nastolo (C‑370/24, ‘the judgment in Nastolo’, EU:C:2025:300, paragraph 37 and the case-law cited). 22 Judgment of 12 February 2026, Stichting Koskea (C‑490/24, EU:C:2026:89, paragraphs 33 and 36 and the case-law cited). See Article 1 of the Third Directive (now Article 12(1) of Directive 2009/103). 23 See, for instance, judgment of 19 September 2024, Matmut (C‑236/23, ‘the judgment in Matmut’, EU:C:2024:761, paragraph 37 and the case-law cited). See, also, Opinion of Advocate General Mengozzi in Churchill Insurance Company and Evans (C‑442/10, ‘the Opinion in Churchill Insurance Company’, EU:C:2011:548, point 23). 24 See also Opinion of Advocate General Szpunar in Matmut (C‑236/23, EU:C:2024:560, points 47 to 53). 25 Judgment of 1 December 2011, Churchill Insurance Company and Evans (C‑442/10, ‘the judgment in Churchill Insurance Company’, EU:C:2011:799, paragraph 33 and the case-law cited). 26 Ibidem, paragraph 34 and the case-law cited. 27 See, for instance, the judgment in Matmut, paragraph 34. 28 The judgments in Churchill Insurance Company, paragraph 35 and the case-law cited, and in Matmut, paragraphs 36 and 46 and the case-law cited. 29 For the present purposes, there is no need to comment on the difficulties that that distinction gives rise to, as noted for instance in Opinion of Advocate General Biondi in Stichting Koskea (C‑490/24, ‘the Opinion in Stichting Koskea’, EU:C:2025:735, points 14 to 16), and the Opinion in Churchill Insurance Company , points 15 to 17. 30 See, for instance, the judgments in Matmut, paragraph 64 and the case-law cited, and of 23 October 2012, Marques Almeida (C‑300/10, EU:C:2012:656, paragraphs 32 and 33 and the case-law cited). 31 The judgment in Farrell, paragraph 36. That case involved a passenger who was a genuine third-party victim (but not the insured party). 32 Judgment of 30 June 2005, Candolin and Others (C‑537/03, EU:C:2005:417, paragraph 35, in combination with paragraphs 11 and 12). The Court was not explicit about whether the owner (victim and passenger) was also the insured party, but that circumstance did not seem to be relevant for the conclusion reached in that judgment. 33 The judgment in Churchill Insurance Company, paragraphs 32 to 36 and 44. 34 Under which, where that nullity cannot be claimed, the insurer may obtain reimbursement of all the sums paid to such a passenger who was a victim in a road traffic accident. That reply was subject to the identification of a possible abuse of rights. See the judgment in Matmut, in particular paragraphs 61 and 66. 35 The judgment in Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision), paragraph 38 and the case-law cited. 36 See, for example, the judgments in Soledil, paragraph 32, and of 24 October 2018, XC and Others (C‑234/17, EU:C:2018:853, paragraph 52 and the case-law cited). 37 The judgments in Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision), paragraph 39 and the case-law cited, and of 16 January 2025, BALTIC CONTAINER TERMINAL (C‑376/23, EU:C:2025:20, paragraph 73 and the case-law cited). 38 For the exceptions developed based on the principle of equivalence, see my Opinion in Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision), points 42 to 50. 39 Judgment of 18 July 2007, Lucchini (C‑119/05, EU:C:2007:434, paragraph 63). The Court stressed the exceptional nature of that finding in the judgment of 10 July 2014, Impresa Pizzarotti (C‑213/13, EU:C:2014:2067, paragraph 61). 40 See, in the area of value added tax, judgment of 16 July 2020, UR (VAT liability of lawyers) (C‑424/19, EU:C:2020:581, paragraphs 32 to 34 and the case-law cited); in the field of State aid, judgment of 11 November 2015, Klausner Holz Niedersachsen (C‑505/14, EU:C:2015:742, paragraphs 43 to 46); and, in the field of common agricultural policy, judgment of 7 April 2022, Avio Lucos (C‑116/20, EU:C:2022:273, paragraphs 102 to 105). 41 The judgment in Soledil, paragraph 22 and the case-law cited. 42 Ibidem, paragraph 23 and the case-law cited. 43 See, for instance, judgment of 21 December 2016, Gutiérrez Naranjo and Others (C‑154/15, C‑307/15 and C‑308/15, EU:C:2016:980, paragraphs 54 and 55 and the case-law cited). 44 Judgment of 17 May 2022, Ibercaja Banco (C‑600/19, ‘the judgment in Ibercaja Banco’, EU:C:2022:394, paragraph 50). 45 ‘Where [they] have available to [them] the legal and factual elements necessary for that task’; the judgment in Soledil, paragraph 24 and the case-law cited. For situations when national courts do not have at their disposal those relevant elements, see judgment of 7 November 2019, Profi Credit Polska (C‑419/18 and C‑483/18, EU:C:2019:930, paragraph 77). 46 See the judgments in Ibercaja Banco, paragraphs 57 to 59, and in Profi Credit Polska (Reopening of proceedings concluded with a final judicial decision), paragraph 83. 47 The judgments in Soledil, paragraph 29, and of 17 May 2022, Unicaja Banco (C‑869/19, ‘the judgment in Unicaja Banco’, EU:C:2022:397, paragraph 29). The Court has often referred to Article 7(1) of Directive 93/13 in combination with the twenty-fourth recital of that directive setting out the same idea. 48 Judgments of 18 February 2016, Finanmadrid EFC (C‑49/14, EU:C:2016:98); of 26 January 2017, Banco Primus (C‑421/14, EU:C:2017:60); of 17 May 2022, SPV Project 1503 and Others (C‑693/19 and C‑831/19, EU:C:2022:395); in Ibercaja Banco; of 18 January 2024, Getin Noble Bank and Others (Review by a national court of its own motion of unfair contractual terms) (C‑531/22, EU:C:2024:58); and of 29 February 2024, Investcapital (C‑724/22, EU:C:2024:182). In contrast to those cases, the judgment in Unicaja Banco did not concern the enforcement of obligations of consumers but rather a consumer’s action seeking a declaration that a clause in a mortgage agreement was void and the repayment of the sums wrongly paid under it. 49 Judgment in Soledil, in particular paragraphs 36 to 39, in combination with paragraphs 11 to 17 thereof. 50 The judgment in Soledil, paragraph 33 and the case-law cited. 51 See the fifth recital of the Third Directive. 52 Likewise, as already observed, there is nothing in the file to indicate that the need to disregard the effects of res judicata could be justified by the principle of equivalence. 53 I recall that not all forms of judicial review can prevent a subsequent judicial review, but only one that meets certain conditions, as explained, in particular, in judgment of 29 February 2024, Investcapital (C‑724/22, EU:C:2024:182, paragraph 45), and recalled in the judgment in Soledil, paragraph 35. 54 As was made clear in particular in the judgment in Soledil; see, also, the judgment in Unicaja Banco (on the latter aspect see footnote 48 above). 55 See footnotes 43 and 44 above and Opinion of Advocate General Richard de la Tour in Ararat (C‑156/23, EU:C:2024:413, point 44). 56 Judgment of 3 July 2025, C. and Others (C‑582/23, EU:C:2025:518, paragraph 55 and the case-law cited). 57 The Italian Government observed at the hearing that, under the applicable national law, national courts are required to raise the question of the nullity (or again, as I understand it, the unenforceability) of the exclusion clause at issue ex officio and that that obligation was infringed in the earlier stages of the main proceedings. 58 See, in particular, judgments of 14 December 1995, van Schijndel and van Veen (C‑430/93 and C‑431/93, EU:C:1995:441, paragraphs 16 to 22); of 7 June 2007, van der Weerd and Others (C‑222/05 to C‑225/05, EU:C:2007:318, paragraph 41); and of 22 June 2023, K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings) (C‑660/21, ‘the judgment in K.B. and F.S.’, EU:C:2023:498, paragraph 53). 59 See, to that effect, Opinion of Advocate General Richard de la Tour in Ararat (C‑156/23, EU:C:2024:413, point 44. 60 In relation to Directive of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66), see judgments of 21 April 2016, Radlinger and Radlingerová (C‑377/14, EU:C:2016:283, paragraphs 62 to 74), and of 5 March 2020, OPR-Finance (C‑679/18, EU:C:2020:167, paragraphs 17 to 24). 61 Judgment of 17 October 2024, Ararat (C‑156/23, EU:C:2024:892, paragraph 50). 62 Judgment of 8 November 2022, Staatssecretaris van Justitie en Veiligheid (Ex officio review of detention) (C‑704/20 and C‑39/21, EU:C:2022:858, paragraphs 85 to 90 and 94). 63 Judgment of 4 October 2024, Ministerstvo vnitra České republiky, Odbor azylové a migrační politiky (C‑406/22, EU:C:2024:841, paragraphs 93 to 98). 64 The judgment in K.B. and F.S., paragraphs 44 to 53 and, in particular, paragraph 19. 65 Ibidem, paragraph 52. 66 See point 49 of the present Opinion. See also Opinion of Advocate General Bobek in Ubezpieczeniowy Fundusz Gwarancyjny z siedzibą (C‑383/19, EU:C:2020:1003, point 41). 67 See, for instance, the judgment in Nastolo, paragraph 39 and the case-law cited. 68 See, for instance, the judgment in Farrell, paragraph 24, and the Opinion in Stichting Koskea, point 35. 69 I note that under Article 5 of the Third Directive, Member States had the obligation to ‘adopt the necessary measures to ensure that the parties involved in a road traffic accident are able to ascertain promptly the identity of the insurance undertaking covering the liability arising out of the use of any motor vehicle involved in the accident’. See also Article 23 of Directive 2009/103. 70 See point 68 of the present Opinion. 71 See also the Opinion in Stichting Koskea, points 35 and 42. 72 I recall that under Article 3(1) of Directive 93/13, ‘a contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.’ 73 When there happens to be one, such as in the case in the main proceedings, that situation constitutes a contingency, as observed by the Italian Government at the hearing. 74 I recall that the seventh recital of the Second Directive states that ‘whereas it is in the interest of victims that the effects of certain exclusion clauses be limited to the relationship between the insurer and the person responsible’. 75 I recall that Article 6(1) of Directive 93/13 provides that ‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’ 76 The fact that the final judicial determination in the main proceedings was made despite the fact that those proceedings are still ongoing is irrelevant. As I have observed elsewhere, it is well known that the concept of a final decision (to which the force of res judicata attaches) is not limited to the resulting single formal decision by which any given proceedings are factually concluded (because the parties have decided not to pursue them or because they have exhausted all available remedies). The effects of res judicata can emerge in the ongoing proceedings, at different stages thereof and on different aspects of the dispute, due to the fact that the parties did not raise the issue concerned or did not contest its assessment. See my Opinion in Soledil (C‑320/24, EU:C:2025:469, point 77). 77 Under the sixth recital of Directive 93/13: ‘… in order to facilitate the establishment of the internal market and to safeguard the citizen in his role as consumer when acquiring goods and services under contracts which are governed by the laws of Member States other than his own, it is essential to remove unfair terms from those contracts’. 78 According to the fifth recital of Directive 93/13, ‘this lack of awareness may deter them from direct transactions for the purchase of goods or services in another Member State’. 79 See the second recital of Directive 93/13, which states that ‘the laws of Member States relating to the terms of contract between the seller of goods or supplier of services, on the one hand, and the consumer of them, on the other hand, show many disparities, with the result that the national markets for the sale of goods and services to consumers differ from each other and that distortions of competition may arise amongst the sellers and suppliers, notably when they sell and supply in other Member States’. 80 According to the seventh recital of Directive 93/13, ‘whereas sellers of goods and suppliers of services will thereby be helped in their task of selling goods and supplying services, both at home and throughout the internal market; whereas competition will thus be stimulated, so contributing to increased choice for Community citizens as consumers’. 81 See, in particular, the third, fifth and sixth recitals of the First Directive, the third recital of the Second Directive and the thirteenth recital of the Third Directive. 82 See the second recital of the First Directive. 83 As required by Article 3(1) of the First Directive and subsequently by Article 3 of Directive 2009/103. 84 Article 3 of Directive 2000/26/EC of the European Parliament and of the Council of 16 May 2000 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and amending Council Directives 73/239/EEC and 88/357/EEC (Fourth motor insurance Directive) (OJ 2000 L 181, p. 65). See Article 18 of Directive 2009/103. 85 See the judgments of 6 October 2009, Asturcom Telecomunicaciones (C‑40/08, EU:C:2009:615, paragraph 47); in Unicaja Banco, paragraph 28 and the case-law cited; of 18 January 2024, Getin Noble Bank and Others (Review by a national court of its own motion of unfair contractual terms) (C‑531/22, EU:C:2024:58, paragraph 45 and the case-law cited); and in Soledil, paragraph 41. 86 See, also, the judgment in Soledil, paragraph 41, in which the Court replied to a similar question referred in similar circumstances in which, as already observed, the relevant consumers appeared in the proceedings but failed to raise, in a timely fashion, a plea of unfairness in respect of the contractual term at issue. 87 Provided that Directive 93/13 applies ratione temporis to the case at hand. 88 That scenario would require a determination to be made as to whether a (genuine) third-party victim could claim consumer protection under Directive 93/13 should it be established that the policyholder acted as a consumer when concluding the insurance policy. 89 I recall again that for a term to be considered to be ‘unfair’ under Directive 93/13 it must, under Article 3(1) of that directive, cause, ‘contrary to the requirement of good faith, … a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer’. It is unclear how a term excluding illegal transport from the insurance cover could cause such an ‘imbalance’. Further doubts may arise as to how both kinds of nullity sought, respectively, by Article 6(1) of Directive 93/13 and by Article 2(1) of the Second Directive could be mutually reconciled given that the former appears to be ‘absolute’ while the latter is only ‘relative’, as discussed at the hearing.