Opinion of the Advocate General — ECLI:EU:C:2013:888
Date: 2013-07-11
Language of the case: Latvian

Summary of the judgment published in OJ 2008 C 263, p. 4. 35 – That judgment concerns the interpretation of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3) and, in particular, the inclusion of compensation for non‑material damage within the scope of the measures referred to in Annex IX to that Agreement, which are the First, Second and Third Directives relating to insurance against civil liability in respect of the use of motor vehicles. 36 – See, in particular, recitals 1 to 3 in the preamble to the First Directive. 37 – See recital 5 in the preamble to the Second Directive and recital 4 in the preamble to the Third Directive. 38 – Case C‑537/03 Candolin and Others [2005] ECR I‑5745, paragraph 17, and Marques Almeida, paragraph 26 and the case-law cited. See also the judgment of the EFTA Court in Nguyen, paragraph 23 and the case-law cited. 39 – Judgment in Marques Almeida, paragraph 27 and the case-law cited. 40 – Judgment in Marques Almeida, paragraph 28 and the case-law cited. 41 – Case C‑348/98 Mendes Ferreira and Delgado Correia Ferreira [2000] ECR I‑6711, paragraph 23, and Marques Almeida, paragraph 29 and the case-law cited. See also the judgment of the EFTA Court in Nguyen, paragraph 24. 42 – Case C‑356/05 Farrell [2007] ECR I‑3067, paragraph 33 and the case-law cited and Marques Almeida, paragraph 30 and the case-law cited. See also the judgment of the EFTA Court in Nguyen, paragraph 25. 43 – .Candolin and Others, paragraphs 27 and 28, and Marques Almeida, paragraph 31 and the case‑law cited. See also the judgment of the EFTA Court in Nguyen, paragraph 24. 44 – Namely the non-material damage suffered by persons who are indirect victims of a road traffic accident in which a next of kin has died. 45 – In Marques Almeida, the Court established a clear distinction in that regard and noted that the national legislation at issue in the main proceedings, which governed the compensation due in accordance with the civil liability of the insured person and not that which might be payable by the insurer, was not compatible with European Union law provided that it did not affect the obligation under European Union law to ensure that civil liability arising under national law is covered by insurance which complies with the First, Second and Third Directives. 46 – Judgment of the EFTA Court in Nguyen, in particular paragraphs 7 and 11. 47 – In the original version of the judgment, drafted in English, the EFTA Court defined the damage at issue as ‘non-economic injury’, whereas I have opted for this different definition as it is more neutral and consistent with the foregoing. 48 – .Nguyen, paragraph 29. 49 – I wish to point out at this juncture the significant difference between the French version of that expression and its English version, the language of procedure of the EFTA Court, the former appearing narrower than the latter. 50 – Judgment of the EFTA Court in Nguyen, paragraph 26. 51 – Ibid., paragraph 27. 52 – In that regard, the EFTA Court refers to Mendes Ferreira and Delgado Correia Ferreira, and the Order of the Court in Case C‑166/02 Messejana Viegas [2003] ECR I‑7871, paragraphs 21 and 22. 53 – Judgment of the EFTA Court in Nguyen, paragraph 28. 54 – See also the Greek (‘σωματικές βλάβες’), Spanish (‘daños corporales’), Dutch (‘lichamelijk letsel’) and Portuguese (‘danos corporais’) language versions. 55 – See, in particular the expressions ‘personskade’, ‘Personenschäden’, ‘personal injury’, ‘danni alle persone’, ‘henkilövahingot’ et ‘personskador’, which are used in the Danish, German, English, Italian, Finnish and Swedish language versions respectively. 56 – Moreover, that terminology is not understood in the restrictive sense even in French law, since ‘préjudices extra-patrimoniaux … des victimes indirectes en cas de décès de la victime directe’ (non-material damage … to indirect victims in the event of the death of the direct victim) appear in the ‘préjudices corporels des victimes indirectes’ (bodily injuries of indirect victims) (emphasis added) in the nomenclature of bodily injuries proposed, in July 2005, by the report of the working group tasked with drawing up that nomenclature under the leadership of J.‑P. Dintilhac (report available at: http://www.ladocumentationfrancaise.fr/var/storage/rapports publics/064000217/0000.pdf in French). 57 – Analysis of the origin of the Second Directive reveals that the dichotomy established between damage to property and personal injuries was not included in the original Commission proposal (proposal submitted on 7 August 1980, OJ 1980 C 214, p. 9), where they were subject to the same arrangements, but stems from the Opinion of the Economic and Social Committee, prepared on 25 and 26 February 1981 (OJ 1981 C 138, p. 15, paragraph 2.2), which noted that compensation for personal injuries was ‘more important from the social point of view’ than that for damage to property. 58 – See point 91 of this Opinion. 59 – The judgment of the EFTA Court in Nguyen, paragraph 2, states that the claimant had lost her husband and two children in a road traffic accident and that she herself was only slightly injured physically, but suffered from psychological afflictions since the accident. 60 – The term ‘passenger’ does not appear in the First or Second Directive. 61 – Recital 4 includes all ‘motor vehicle accident victims’ in the protection afforded by European Union law. In recital 5, the words ‘in particular’ and ‘particularly’ emphasise that the passengers of motor vehicles are considered to be a ‘category’, amongst others, of ‘potential victims’, those passengers requiring special attention owing to their vulnerability. 62 – In its Opinion of 26 April 1989 on the proposal for the Third Directive (OJ 1989 C 159, p. 7), the Economic and Social Committee stated, in paragraph 1.2, that passengers must be given the protection of third party insurance cover, on the ground that, at that time, it was not compulsory in some Member States. 63 – In particular Article 1a of the Third Directive, inserted by Directive 2005/14, stated that other categories of victims, such as pedestrians, cyclists and other non-motorised users of the roads, are also covered where they ‘are entitled to compensation in accordance with national civil law’. 64 – See the settled case-law cited above (in particular Marques Almeida, paragraph 26), which refers to the preambles to those directives). 65 – See point 59 et seq. of this Opinion. 66 – It being noted that national law, and not European Union law, determines the victim’s right, and the extent of that right, to compensation on the basis of the civil liability of the insured person (see in particular, Marques Almeida, paragraph 35). 67 – This is the case inter alia in Bulgaria, Germany, Estonia, Ireland, Spain, France, Italy, Cyrpus, Latvia, Poland, Slovenia, Sweden and the United Kingdom. 68 – In Germany, the damage can be compensated for only if it goes beyond ‘normal’ reactions and disadvantages following a death which has occurred in those circumstances. In Estonia, compensation is justified mainly where the next of kin was a witness to the accident. In the United Kingdom, the case-law has imposed cumulative conditions, namely a psychiatric illness caused by the shock, the existence of close ties of affection with the victim, the closeness of the beneficiary to the accident and the shock caused by directly witnessing the accident. 69 – In Sweden, the indirect victim automatically receives compensation for the year following the death of a next of kin. After that year, the victim must prove that his suffering is more sustained by producing medical certificates. 70 – See, inter alia, Marques Almeida, paragraph 31 and the case-law cited. 71 – That article provides that the flat-rate amount for compensation paid by an insurer for psychological pain and suffering caused by the death, in particular, of an economic provider is LVL 100, thus approximately EUR 143 per applicant and per deceased person. 72 – The amounts at issue, noted in point 13 of this Opinion, are now included in Article 9 of Directive 2009/103. 73 – That law fixes the limit for which the liability of an insurer may be sought in accordance with compensation for personal injuries at LVL 250 000, thus approximately EUR 357 283. 74 – Article 19(3) of the Latvian Law on Compulsory Insurance had provided that the amount and the method for calculating compensation by insurers for material and non-material damage caused to persons are fixed by the Council of Ministers. 75 – Case C‑129/94 Ruiz Bernáldez [1996] ECR I‑1829, paragraph 15. 76 – See Mendes Ferreira and Delgado Correia Ferreira, paragraph 26, and points 8 and 9 of the Opinion of Advocate General Cosmas in that case. 77 – This is apparent from a comparison between the original Commission proposal of 7 August 1980, the Opinion of the Economic and Social Committee of 25 and 26 February 1981, the amendments proposed by the European Parliament of 14 October 1981 (OJ 1981 C 287, p. 44) and the amendment of that proposal submitted by the Commission on 3 March 1982 (OJ 1982 C 78, p. 17). 78 – Those amounts were revised upwards and coupled with a periodic revision clause in order to ensure that the minimum amount of cover was not eroded, when Directive 2005/14 was adopted. See also Article 9 of Directive 2009/103 and the Commission’s Notice regarding the adaptation in line with inflation of certain amounts laid down in the Motor Insurance Directive 2009/103 (OJ 2010 C 332, p. 1). 79 – The Court has also followed that approach, in particular, in Case C‑484/09 Carvalho Ferreira Santos [2011] ECR I‑1821, paragraph 45. 80 – See recital 10 in the preamble to Directive 2005/14 and recital 12 in the preamble to Directive 2009/103. 81 – .Mendes Ferreira and Delgado Correia Ferreira, paragraph 41, and Messejana Viegas, paragraph 20, on the Portuguese legislation laying down those amounts where, in the absence of fault on the part of the driver of the vehicle which caused the accident, only civil liability for materialisation of risk arises. 82 – The Court has pointed out that the Community legislator intended to require cover for all civil liability arising from the use of motor vehicles, even though the Member States are free to determine the civil liability scheme, based on fault or risk, which applies to those accidents. See Mendes Ferreira and Delgado Correia Ferreira, paragraphs 29 and 40, and the Order in Messejana Viegas, paragraph 21. 83 – Order in Messejana Viegas, paragraph 22. See also the Opinion of Advocate General Cosmas in Case C‑348/98, point 48. 84 – I note that the minimum amounts of guarantees laid down in the directives at issue are likely to give rise to some de facto harmonisation of the civil liability rules applicable in the Member States, which may be inclined to amend their legislation on the subject, even though there is no legal obligation to do so in European Union law (see H. Heiss ‘Motor vehicle liability insurance between the European directives and national tort law’, Over grenzen: liber amicorum Herman Cousy, Intersentia, Antvers-Cambridge, 2011, p. 127 to 136, in particular p. 133). 85 – This issue should not be confused with the Court’s examination of proportionality with regard to national laws denying or limiting in a disproportionate manner, the right of a victim to be compensated by compulsory insurance against civil liability solely on the basis of the victim’s contribution to the occurrence of his injuries (see, inter alia, Marques Almeida, paragraphs 30 et seq., and the Order of 21 March 2013 in Case C‑486/11 Rodrigues Esteves, paragraph 26 et seq.). 86 – Namely ‘Without prejudice to any higher guarantees which Member States may lay down …’. 87 – This can be seen in the preparatory works regarding that provision (see in particular, the original proposal and the Opinion of the Economic and Social Committee, cited above, paragraphs 2.1 and 2.2). 88 – As the referring court seems to envisage (see paragraph 8.1 in fine of its decision). 89 – See Marques Almeida, paragraph 30 and the case-law cited, where the Court held that ‘Member States are obliged to ensure that the civil liability arising under their domestic law is covered by insurance which complies with the provisions of the three abovementioned directives (emphasis added). 90 – See paragraph 8.2 of the order for reference. 91 – It refers in this regard to paragraphs 77 and 78 of the judgment in Case C‑518/06 Commission v Italy [2009] ECR I‑3491. 92 – I observe that the risk invoked would be the same with regard to material damage. 93 – In paragraph 2.3 of its Opinion on the proposal for a Second Directive. 94 – See recital 11 in the preamble to the Second Directive and Articles 5 and 6 of the Second Directive. 95 – The Commission’s Proposal of 19 June 2002 which led to the adoption of Directive 2005/14 makes an assessment according to which a number of Member States have opted for unlimited cover and the majority of those that have set minimum amounts of cover have done so at a level which is higher than that laid down in the directives without insurance undertakings in those Member States having suffered as a result [COM(2002) 244 final, p. 6 and p. 29]. 96 – Law amending and supplementing the Insurance Code (DV No 21 of 13 March 2012). 97 – See the article of I. Stoyanova, ‘Обезщетенията за неимуществени вреди при ‘Гражданска отговорност’ на автомобилистите’, available at: www.zastrahovatel.com/statia.php?mysid=3522&t=4. 98 – This law was inserted into the Swedish General Law on Compensation for Damages by Law 2001:732, which entered into force on 1 January 2002. 99 – Regeringens proposition 2000/01:68, Ersättning för ideell skada, p. 34 and p. 63. 100 – The question is worded as follows: ‘must the provisions of Article 4(1)(2) and (4) of the Slovak Law [on Compulsory Insurance] and Article 6(1) to (3) of the Czech Law [on Compulsory Insurance] be interpreted …’. 101 – See inter alia, Case C‑23/12 Zakaria [2013] ECR, paragraph 29. 102 – See, in particular, judgment in Case C‑282/10 Dominguez [2012] ECR, paragraph 25, and point 67 of my Opinion in Case C‑98/09 Sorge [2010] ECR I‑5837.