Opinion of the Advocate General — ECLI:EU:C:2024:242
Date: 2024-03-14
Language of the case: Bulgarian
Subject matter: Provisions governing the Institutions;Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-86/23 – 1 
Case C-86/23 
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:  
15 February 2023  
Referring court:  
Varhoven kasatsionen sad (Bulgaria) 
Date of the decision to refer:  
7 February 2023  
Appellants:  
E.N.I. 
Y.K.I. 
Respondent:  
HUK-COBURG-Allgemeine Versicherung AG 
  
Subject matter of the main proceedings 
Interpretation of EU secondary law under Article 267 TFEU. 
Subject matter and legal basis of the request 
Interpretation of Article 16 of Regulation No 864/2007 (Rome II), in particular as 
regards the question whether the rules laid down in national law providing for fair 
compensation in respect of non-material damage suffered by parents as a result of 
the death of their daughter caused in another Member State must be classified as 
‘overriding mandatory provisions’ within the meaning of that provision and must 
therefore apply irrespective of the law governing the non-contractual obligation. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-86/23 
 
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Question referred for a preliminary ruling 
Must Article 16 of Regulation (EC) No 864/2007 of the European Parliament and 
of the Council of 11 July 2007 on the law applicable to non-contractual 
obligations (Rome II Regulation) be interpreted as meaning that a rule of national 
law, such as that at issue in the main proceedings, which provides for the 
application of a fundamental principle of the law of the Member State, such as the 
principle of fairness, in the determination of compensation for non-material 
damage in cases where the death of a close person has occurred as a result of a tort 
or delict, may be regarded as an overriding mandatory provision within the 
meaning of that article? 
Relevant provisions of EU law 
Regulation (EC) No 864/2007 of the European Parliament and of the Council of 
11 July 2007 on the law applicable to non-contractual obligations (Rome II 
Regulation), in particular recital 7 and Articles 4 and 16; 
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 
17 June 2008 on the law applicable to contractual obligations (Rome I), and in 
particular Article 9(1) and (2); 
Convention on the law applicable to contractual obligations, opened for signature 
in Rome on 19 June 1980 (Rome Convention), Article 7; 
Relevant case-law of the Court of Justice of the European Union 
Judgment of 15 December 2022, HUK-COBURG-Allgemeine Versicherung AG, 
С-577/21, ECLI:EU:C:2022:992, in particular paragraphs 45 to 48 and operative 
part; 
Judgment of 31 January 2019, da Silva Martins, C-149/18, ECLI:EU:C:2019:84, 
in particular paragraphs 27 to 31; 
Relevant provisions of national law: 
(i) German law: 
Bürgerliches Gesetzbuch (Civil Code, ‘the BGB’), in particular Paragraphs 253 
and 823; 
Straßenverkehrsgesetz (Law on road traffic, ‘the StVG’), in particular 
Paragraphs 7 and 11; 
Versicherungsvertragsgesetz (Law on insurance contracts, ‘the VVG’), in 
particular Paragraph 115; 
HUK-COBURG-ALLGEMEINE VERSICHERUNG 
 
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(ii) Bulgarian law: 
Zakon za zadalzheniyata i dogovorite (Law on obligations and contracts, ‘the 
ZZD’), in particular Articles 45 and 52; 
Grazhdanski protsesualen kodeks (Code of Civil Procedure, ‘the GPK’), in 
particular Articles 280, 281, 288, 290, 293, 631 and 633; 
Zakon za sadebnata vlast (Law on the judiciary), Articles 124 and 130(2) 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 27 July 2014, in the administrative district of Münster, Germany, a road traffic 
accident caused by the driver of a passenger car resulted in the death of a female 
passenger in that car. At the time of the accident there was a valid civil liability 
insurance contract between the driver and the German insurance company HUK-
COBURG-Allgemeine Versicherung AG. 
2 The parents of the deceased, E.N.I. and Y.K.I., are Bulgarian nationals 
permanently resident in Bulgaria. On 25 July 2017 they filed claims with the 
Sofiyski gradski sad (Sofia City Court, ‘the SGS’) against the German insurer for 
payment of insurance compensation in the amount of 250 000 leva (BGN) for 
each parent as compensation for non-material damage suffered as a result of the 
death of their daughter. Two months after the claims were filed the German 
insurance company paid compensation of EUR 2 500 to each of the two 
applicants. The SGS awarded each applicant insurance compensation of BGN 
95 110.43, having fixed the amount of compensation for each applicant at BGN 
100 000, from which it deducted the compensation paid by the insurer in the 
course of the proceedings. It dismissed the claims as regards the remainder of the 
full amount (BGN 250 000) sought by each applicant. The SGS held that German 
tort law, namely Paragraph 253(2) of the BGB, was applicable, which provides for 
a right to compensation for persons only in special situations where the pain and 
suffering endured had led to “harm to health”, i.e. damage to the health of the 
indirectly affected victim. The SGS considered that fair compensation should be 
paid for the pain and suffering endured by the applicants since (1) the insurer had 
made a payment, which the court deemed to be an acknowledgement of the 
applicants’ rights to compensation, and (2) findings had been made that the 
applicants had suffered a severe emotional crisis when they received the news of 
the sudden death of their daughter, that the severe mental trauma suffered had led 
to strong negative emotions and to an adjustment disorder, i.e. to an acute stress 
reaction, and that they had suffered from depression, agitation, tension, emotional 
instability, sleep disorders, loss of appetite and emotional alienation – they had 
distanced themselves from their friends and had become more withdrawn – for 
approximately one year after the death of their daughter. The SGS stated that the 
principle of fair compensation for non-material damage (Article 52 of the ZZD 
and Paragraph 253(2) of the BGB) is enshrined in both Bulgarian law and German 
law. In this context the criteria for assessing compensation are not laid down by 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-86/23 
 
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legislation, either in Bulgarian law or in German law, but are derived from case-
law. 
3 Both the applicants and the defendant at first instance challenged the judgment of 
the SGS before the Apelativen sad Sofia (Sofia Court of Appeal). The latter 
dismissed the claims in their entirety as unfounded. It found that the insurance 
company’s objection that it had not been proven that the pain and suffering 
endured had led to pathological damage to health was well-founded. This is a 
prerequisite under the applicable German law for a right to compensation for non-
material damage to arise. The applicants’ argument that, pursuant to Article 16 of 
the Rome II Regulation, Article 52 of the ZZD is applicable instead of German 
tort law, which is applicable under Article 4(1) of the same Regulation, was held 
to be unfounded. The payment by the insurer of damages of EUR 2 500 to each 
applicant did not constitute acknowledgement of the claims and was therefore not 
binding on the court. On the other hand, it was considered that the amount of the 
sums paid corresponded to the ‘fair compensation’ provided for in 
Paragraph 253(2) of the BGB for non-material damage. 
4 The applicants at first instance challenged the judgment on appeal before the 
Varhoven kasatsionen sad (Supreme Court of Cassation, ‘the VKS’). That court 
allowed the appeal on a point of law, taking the view that there is contradictory 
case-law of the Bulgarian courts on the question whether the provision of 
Article 52 of the ZZD constitutes an overriding mandatory provision within the 
meaning of Article 16 of the Rome II Regulation. The VKS considers that an 
affirmative answer to that question would exclude German tort law, which is 
applicable under Article 4(1) of the Regulation. It awaited the judgment of the 
Court of Justice in Case C-577/21 in response to the SGS’s request for a 
preliminary ruling in proceedings concerning the payment of insurance 
compensation for non-material damage resulting from the same road traffic 
accident. In those proceedings non-material damage was claimed by the children 
of the deceased person (and not, as in the present case, by her parents). As the 
VKS did not find an answer to the question that subsequently arose as to the 
interpretation of Article 16 of the Rome II Regulation and in view of the fact that 
the decisions of the VKS are not subject to appeal, the VKS decided, pursuant to 
Article 267(3) TFEU, to submit a request for a preliminary ruling to the Court of 
Justice. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
5 First of all, the VKS recalls the operative part of the judgment in HUK-COBURG-
Allgemeine Versicherung AG, С-577/21, in which the Court held that Article 3(4) 
of Directive 2009/103/ЕG must be interpreted as not precluding national 
legislation which makes compensation, by an insurer against civil liability in 
respect of the use of motor vehicles, for non-material damage suffered by close 
family members of victims of road traffic accidents subject to the condition that 
HUK-COBURG-ALLGEMEINE VERSICHERUNG 
 
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that harm entailed pathological damage to the health of such close family 
members. 
6 In paragraph 46 of that judgment the Court stated that under German law (in the 
version also applicable to the present dispute) compensation for non-material 
damage suffered by indirect victims of a road traffic accident is essentially subject 
to three conditions, namely that (i) such a victim has suffered damage to his or her 
own health, (ii) that person is a close family member of the direct victim and (iii) 
there is a causal relationship between the fault committed by the person 
responsible for the accident and that injury. In addition, under German law, as 
interpreted by the Bundesgerichtshof (Federal Court of Justice), injuries to mental 
health can only be considered to be harm to health if they are part of a 
pathological condition and go beyond the health problems to which persons 
concerned are generally exposed in the event of the death or serious injury of a 
close family member. It was held that German national legislation lays down, in 
particular, an objective criterion which makes it possible to identify, where 
appropriate during a check carried out on a case-by-case basis by a national court 
seised, the non-material damage which may be the subject of compensation to a 
close family member of the direct victim of a road traffic accident and that 
Directive 2009/103 does not preclude national legislation which lays down 
binding criteria for determining the non-material damage that may be 
compensated (paragraphs 47 and 48 of the Court’s judgment in Case С-577/21). 
7 Unlike German law, the Bulgarian rule in Article 52 of the ZZD provides that ‘the 
court shall determine compensation for non-material damage on the basis of the 
principles of fairness’. This question has been clarified in Bulgarian case-law by 
interpretative decisions of the Obshtoto sabranie na Nakazatelna, Grazhdanska i 
Targovska kolegiya of the VKS (General Assembly of the Criminal, Civil and 
Commercial Division of the VKS, formerly Plenum na Varhovniya sad, Plenary 
Assembly of the Supreme Court). In accordance with Article 130(2) of the 
Bulgarian Law on the judiciary, those interpretative judgments or decisions are 
binding on judicial and administrative authorities, local self-government and all 
authorities which adopt administrative acts, including, in the present case, the 
VKS panel. In those interpretative decisions the VKS (and, previously, the 
Varhoven sad, the Supreme Court of Bulgaria) held that the criterion for 
compensation for non-material damage suffered in the event of the death of a 
close person was the existence of a particularly close life relationship justifying 
the award of compensation for the non-material damage caused by the death. 
Compensation should be awarded only if the evidence in the proceedings shows 
beyond doubt that the person seeking compensation has provided the full evidence 
required of him or her of the existence of a lasting and deep emotional relationship 
with the deceased and that serious (in terms of intensity and duration) mental pain 
and suffering has occurred as a result of his or her death. Such a relationship 
suggests that there is a legitimate expectation of mutual care and assistance, 
emotional support and trust; in the absence of such a relationship, the occurrence 
of non-material damage for which compensation may be awarded is excluded 
under the principle of fairness pursuant to Article 52 of the ZZD. Already in 1961 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-86/23 
 
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the Plenary Assembly of the Supreme Court ruled that the next of kin of the 
victim (children, parents, spouses) were entitled to compensation since, due to the 
nature of the life relationship that had existed, it was logical to presume that they 
had suffered direct, immediate and prolonged substantial mental pain and 
suffering as a result of the loss of the victim and that the person seeking 
compensation would have to prove that he or she had actually suffered this non-
material damage. 
8 In another decision (from 1968) the Plenary Assembly of the Supreme Court held 
that the concept of fairness within the meaning of Article 52 of the ZZD was not 
an abstract concept and depended on the assessment of a number of specific, 
objective circumstances which were to be taken into account by the court when 
assessing the amount of compensation for non-material damage. In relation to 
wrongful death, the key factors are the age of the victim, his or her social position, 
and the relationship between the victim and the close relative seeking 
compensation for non-material damage. Furthermore, according to the recent 
case-law of the VKS, the social understanding of fairness at a given stage of social 
development is also important. 
9 The VKS compared Bulgarian law and binding case-law with the German tort law 
in force at the time of the road traffic accident. In doing so it found that, under 
Bulgarian law, compensation is payable for all mental pain and suffering endured 
by parents on the death of their child as a result of an unlawfully and culpably 
caused road traffic accident. In that context it is not necessary for the harm to have 
resulted in pathological damage to the health of the indirect victim. According to 
the case-law of the VKS, the amount of damages depends on the specific 
circumstances established in the case, but the compensation usually awarded to 
parents for the death of their child in a road traffic accident at the time of the 
accident, in 2014, amounts to approximately BGN 120 000 (equivalent to EUR 
61 355.03) for non-material damage, whereas under German law the maximum 
award is approximately EUR 5 000. 
10 The VKS emphasises that the answer to the question of which substantive law is 
applicable in the present case is essential to determine (1) the nature of the non-
material damage to be compensated (all mental pain and suffering, or only that 
which leads to pathological damage to the health of the indirect victim of the 
accident) and, based on that, also (2) the category of persons entitled to 
compensation for non-material damage as well as (3) the amount of damages (in 
general, approximately EUR 61 000 if Bulgarian law applies or approximately 
EUR 5 000 if German law applies). 
11 According to the VKS it must be taken into account that the Court of Appeal, 
applying German tort law, has ruled that in the case at hand the parents of the 
deceased are not entitled to compensation for non-material damage, including the 
payment made by the insurer in the course of the proceedings, since only the usual 
pain and suffering on the death of a close relative had been proven, but there was 
no mental illness as a result of the shock suffered from the death of their daughter. 
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Even if the applicants’ objection, namely that the full evidence required of them of 
a pathological disorder resulting from the death of their daughter had been 
provided during the proceedings, were to be regarded as well-founded, the 
maximum amount of compensation due would be EUR 5 000. If it were to be 
considered that, pursuant to Article 16 of the Rome II Regulation, Article 52 of 
the Bulgarian ZZD is applicable, the merits of the claims in the case at hand 
would not depend on proof of the existence of the pathological damage to health 
prescribed by German law; rather, compensation would be due for the usual pain 
and suffering as a result of the death of a close relative (which have been proven 
in the main proceedings), and thus any sums awarded would, in principle, be 
significantly higher than those already paid by the defendant company. 
12 With regard to the meaning of the term ‘overriding mandatory provisions’ used in 
the Rome II Regulation, the VKS refers to the da Silva Martins judgment (С-
149/18, Paragraphs 27 to 31). In that judgment the Court of Justice held that 
Article 9(1) of the Rome I Regulation has to be applied by analogy, since the 
concept of ‘overriding mandatory provisions’ is not defined in the context of the 
Rome II Regulation. Consequently, it must be held that, with regard to the 
possible identification of an ‘overriding mandatory provision’, within the meaning 
of Article 16 of the Rome II Regulation, the national court must find, on the basis 
of a detailed analysis of the wording, general scheme, objectives and the context 
in which that provision was adopted, that it is of such importance in the national 
legal order that it justifies a departure from the applicable law, designated 
pursuant to Article 4 of that regulation. It was also pointed out, in the context of 
the Rome Convention, ‘that the plea relating to the existence of a “mandatory 
rule” within the meaning of the legislation of the Member State concerned must 
be interpreted strictly.’ 
13 The specific nature of the present case is that the principle of fairness is a 
fundamental principle of Bulgarian law and a part of Bulgarian public policy. This 
principle forms the basis for the provision of Article 52 of the ZZD, it being noted 
that, according to the interpretation given by the VKS (formerly Varhoven sad, 
Supreme Court), the category of persons entitled to compensation for non-material 
damage, which includes all mental pain and suffering endured by these persons, is 
to be determined precisely in light of this principle and the amount of damages is 
also to be determined in accordance with this principle. 
14 Since the rule in Article 52 of the ZZD expresses a fundamental principle of the 
law of the Republic of Bulgaria, the present panel of the VKS considers it 
necessary to refer the question to the Court of Justice of the European Union for a 
preliminary ruling as to whether Article 16 of the Rome II Regulation must be 
interpreted as meaning that a rule of national law, such as that at issue in the main 
proceedings, which provides for the application of a fundamental principle of the 
law of the Member State, such as the principle of fairness, when determining 
compensation for non-material damage in cases where the death of a close person 
has occurred as a result of a tort or delict, may be regarded as an overriding 
mandatory provision within the meaning of that article.