Opinion of the Advocate General — ECLI:EU:C:2021:125
Date: 2021-02-23
Language of the case: Spanish
Subject matter: Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Spain

summary, indeterminate legal concepts of EU law, although they might very well be autonomous, are not to be applied outside their proper context, as set out in its text, structure, and purpose. The concept of ‘use of vehicles’, contained in the first subparagraph of Article 3 of Directive 2009/103, is just an element of the general duty for the Member States to make sure that civil liability in respect of the use of vehicles normally based in their territory is covered by insurance. Neither that provision, nor a fortiori one term alone taken out of the context of that provision as a whole, is supposed to provide harmonised guidance for deciding on liability for individual incidents, particularly not once the default obligation to take out civil liability insurance in accordance with that provision is satisfied, and there is no clear conflict with any of the other express provisions of Directive 2009/103. C. Interpretation versus application of EU law 49. There is another issue which is connected to the previous point and is worth recalling. Pursuant to the first subparagraph of Article 267 TFEU, the Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning the interpretation of the Treaties, or the validity or interpretation of acts of the institutions, bodies, offices or agencies of the Union. By contrast, the application of EU law, be it following the guidance issued by this Court pursuant to Article 267 TFEU, or naturally and in the vast majority of cases without it, is primarily the task of the national courts. 50. Admittedly, application of the law is likely to include certain elements relating to its interpretation. Conversely, interpretation of the law can hardly be carried out in an abstract manner, with no regard for the circumstances of an individual case or individual cases, when assessing the soundness of the interpretation proposed. Thus, it is impossible to state, in abstract terms and in general, exactly where interpretation of the law stops and application of the law begins (and vice versa). 51. Nonetheless, I would suggest that the present case and the cases discussed in section A of this Opinion provide a good and concrete illustration as to when the intervention of this Court is not necessary, certainly not at such level of factual detail previously provided. 52. First and above all, in view of the observations made in section B of this Opinion, any need for interpretation of an indeterminate legal concept provided for in EU law, including the concept of ‘use of vehicles’ contained in Article 3 of Directive 2009/103, is naturally delimited by the text, context and the purpose of the provision at issue. There is in fact no need to interpret the concept of ‘use of vehicles’ in order to decide on whether the liability of a given insurer was triggered in the context of a specific accident in the first place. 53. Second, even if one were to assume that the concept of ‘use of vehicles’ were also to provide for the settlement of individual liability cases and were used to determine whether, in a given moment, the specific use was a normal use of a vehicle, there is only so far (or so low in the level of abstraction) any (normative) legal rule can go in view of the infinite variety of possible factual scenarios. In this sense, the Court has already stated on a number of occasions that the concept of ‘use of vehicles’ includes any normal use of the vehicle which is consistent with its function as a means of transport. (41) Whether such a definition is too broad, too narrow, or somewhat circular, and how exactly it should be refined, may certainly be open to debate. However, unless such a discussion concerning the scope of an EU law notion is expressly and clearly triggered by an order for reference, it is difficult to see how yet another confirmation that the specific situation at issue indeed amounts to another ‘use of vehicles’ contributes to securing uniform interpretation of EU law across the Union, envisaged by the drafters of the Treaties. 54. It may certainly be suggested that any pronouncement of this Court will secure some degree of uniform interpretation and application of EU law across the Union. That is certainly correct. Indeed, following the Court’s judgment in Línea Directa Aseguradora for example, it is to be hoped that all situations ‘in which a vehicle parked in a private garage of a building, used in accordance with its function as means of transport, has caught fire, giving rise to a fire which originated in the electrical circuit of that vehicle and caused damage to that building, even though that vehicle has not been moved for more than 24 hours before the fire occurred’, (42) will be treated uniformly across the Union. 55. However, one may reasonably wonder whether this is the kind and level of uniform interpretation that the Court of Justice ought to be concerned with under Article 267 TFEU. It is rather reminiscent of narrow casuistic decision-making a national civil court of first instance would be properly engaged in. Moreover, as experience has shown, such ‘factual jurisprudence’ cannot but invite additional questions and further need for distinctions: (43) what if the vehicle was parked in a public street and not in a private garage? What if the car has not been moved for a considerably longer period, thus making it, in effect, stationary? What if the fire did not originate in the electrical circuit of the car but somewhere else? (44) 56. Third, the primary role of the Court ought to be the articulation or the refinement of normative, legal premissa maior stemming from EU law, to be applied by national courts. The subsumption of the facts of the individual case, the premissa minor, and the conclusion as to the application of EU law in that particular case, is the task of national courts. 57. Naturally, pursuant to Article 267 TFEU, a national court or tribunal may always make a request for a preliminary ruling. However, as a rule of thumb, with regard to issues already interpreted, the question ought to relate properly to the potential refinement of the EU-law-based premissa maior to be applied in the main proceedings (its clarification, narrowing, broadening, providing for an exception and so on). Yet another confirmation that the same, previously articulated premissa maior applies to another set of facts, without in any way inviting the re-consideration of the extant premissa maior, is a matter of application of EU law, a task entrusted to the national courts. 58. It is fair to admit that those ideal boundaries become somewhat blurred when narrow factual elements are made part of the EU-law-defined premissa maior. In such cases, a referring court might in fact be entirely correct in making sure whether new and different factual elements are indeed part of the legal rule that the Court wished to formulate. (45) 59. In order to identify the appropriate level of abstraction, it appears crucial to accept two elements as the starting point: judicial self-restraint and an acceptance towards some degree of permissible diversity. Certainly, the imperative of uniformity and the uniform application of EU law across the whole of the Union has always occupied a central place in the case-law of the Court. However, and rather naturally, it is important to discriminate in that regard between the issues that do in fact matter for that purpose and those that do not, particularly in view of the (by definition) finite judicial resources of the EU Courts. 60. For example, one may imagine a situation in which a passenger of a taxi, in getting out of the taxi from the back seat after having been transported therein, opens the back door without properly checking first and scratches a car passing by at that very moment. Does that amount to a ‘use of vehicle’ pursuant to Article 3 of Directive 2009/103? Should compensation for the property damage caused be paid by the civil liability insurance of the taxi, and not by the civil liability insurance of the passing car? Or is the passenger of the taxi the one who should be personally liable since he or she did not bother to look properly before opening the door? 61. I fail to see how a potential diversity across civil courts in the Union as to how such a case ought to be settled – provided that there would even be an identical case in that regard given the non-exhaustive factual variations and nuances that might justify different results – would be anything this Court should be concerned about. Such a case, unless it incidentally opens up a broader issue of normative incompatibility of national law or practice with any other express provision of EU law, properly pertains to the realm of application of the law. In addition, such a degree of uniformity in terms of homogeneity in outcomes in individual cases is, I would dare to say, a myth. In fact, such uniformity is not even achieved in highly centralised national judicial systems which, in contrast to the role of this Court with regard to preliminary rulings, carry out extensive review of the decisions of the lower courts as to the correct application of the law in individual cases. 62. In sum, there is and there will always be some degree of diversity in the national application of EU law, even in harmonised areas. Not only is this permissible, but it is also reasonable and natural. The Court of Justice, seised on a request for a preliminary ruling concerning the interpretation of EU law pursuant to Article 267 TFEU, is called to set the outer limits of that diversity by providing for uniform interpretation of EU law, including the indeterminate legal concepts contained therein. However, that interpretation is to remain at an appropriate level of abstraction. Put differently, the task of the Court of Justice under Article 267 TFEU is ensuring uniform interpretation of EU law, aiming at the level of applicable legal rules, not at the level of outcome of each case. That logically entails that even while there is a reasonable degree of uniformity of legal rules, there might be diversity in terms of concrete outcomes. D. The present case 63. For the reasons set out in the preceding two sections of this Opinion, I essentially agree with the primary argument put forward by the Spanish Government and the submissions of the Commission: Article 3 of Directive 2009/103 does not preclude any of the (opposing national) interpretations of Article 5(2) of the Law on Vehicle Insurance, simply because the decision on whether, in the circumstances of an individual case, the damage caused to a semi-trailer operating as part of an articulated vehicle will be covered by the civil liability insurance of the truck tractor, or potentially by the civil liability insurance of the semi-trailer, is not regulated by the provisions of EU law invoked. 64. That being said, I believe it is appropriate to add three case-specific points in conclusion. 65. First, the fact that Article 5(2) of the Law on Vehicles Insurance is the provision of national law nominally invoked by the referring court in its question, which indeed regulates the ‘scope and exclusions’ from the compulsory insurance (in general), is of little relevance when placed in the context of the case in the main proceedings. As pointed out by the Spanish Government, national law does contain a specific provision on the distribution of liability with regard to the individual elements of an articulated vehicle in the case of a collision, namely Article 19 of the Regulation on compulsory civil liability insurance for the use of motor vehicles. (46) However, that provision only governs the division of liability in cases of damage caused to third parties. Thus, doubts and interpretative divergences in individual cases arose at national level with regard to another situation not provided for in that national (derived) legislation: what if the damage is not caused to a third party, but instead to one unit of the articulated vehicle by another? 66. However, that merely emphasises the fact that the interpretative doubts raised by the referring court, reinforced apparently by the different outcomes reached in national regional courts, relate to the interpretation and application of national rules. I fail to see how anything contained in Article 1 or Article 3 of Directive 2009/103 could assist the referring court in settling that issue of national law. 67. Second, it is not clear how that conclusion would be altered by the reference made to the final subparagraph of Article 3 of Directive 2009/103 in the question submitted by the referring court. That provision reads: ‘the insurance referred to in the first paragraph shall cover compulsorily both damage to property and personal injuries’. Similarly to the Commission, I do not see (and the referring court does not explain) how the coverage for damage to property could in any way be compromised or limited by either of the possible interpretations of the national provisions at issue. As far as I understand it, the possibility to recover damage to property in cases such as the present one clearly exists. The obligation to take out civil liability insurance under Article 3 of Directive 2009/103 appears satisfied. It is also not suggested that that coverage would in general terms fall short of any of the other provisions of that directive. The issue is rather who will ultimately be obliged to pay that bill, be it the insurer of the truck tractor or the insurer of the semi-trailer. 68. Third, the same is true if the attention were to shift from Article 3 to Article 1 of the directive, and to the definitions of what is a ‘vehicle’ and who might be an ‘injured party’ contained therein, as the question of the referring court implies. In fact, in its submissions, the Commission engaged in such a discussion, wondering whether a semi-trailer, or perhaps rather the owner of such a semi-trailer, could possibly be an ‘injured party’ within the meaning of Article 1(2) of Directive 2009/103. Those reflections led the Commission to suggest that a damaged semi-trailer is perhaps not the type of victim the protection of which the directive constantly sought to reinforce, (47) thus again wondering how any such exclusion, not even expressly provided for in national law, (48) could compromise the scope of coverage for damage to property required under the final subparagraph of Article 3 of Directive 2009/103. 69. I am much obliged to the Commission for this reflection. It helps to emphasise in actual terms the general point already made above: (49) such issues and considerations fall outside the proper scope of Directive 2009/103. That is evidenced by the logical dissonance (bordering on the bizarre) which reveals itself once one tries to squeeze a situation outside a given legislative framework into that framework. The extant concept and logic simply do not provide for and thus do not fit that situation at all. (50) 70. In summary, provided that the key purpose of Directive 2009/103 is met, namely that in line with the obligation set out in Article 3 of that directive, a Member State has provided for the duty to take out civil liability insurance in respect of the use of vehicles, thereby protecting potential victims of road traffic accidents and thus encouraging free movement across the European Union, the specific conditions of that obligation, and a fortiori the realisation of that liability in individual cases of motor vehicle accidents, remains a matter of application of EU law or, a fortiori, of national law, entrusted to the national courts. V. Conclusion 71. I propose that the Court answer the question referred for a preliminary ruling by the Tribunal Supremo (Supreme Court, Spain) as follows: – Neither the final subparagraph of Article 3 of Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability, nor Article 1(1) or (2) of that directive, provide for any rules regulating the issue of whether national law should treat damage to property caused to a semi-trailer, while it was being operated as part of an articulated vehicle with a truck tractor, as an incident to be covered by the compulsory insurance against civil liability taken out for that truck tractor. That matter is, together with all the other issues not specifically governed by Directive 2009/103, for national law to regulate and for national courts to decide. 1 Original language: English. 2 Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability (OJ 2009 L 263, p. 11). 3 Judgment of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146, paragraph 59 and the operative part of that judgment). 4 Judgment of 28 November 2017, Rodrigues de Andrade (C‑514/16, EU:C:2017:908, paragraph 42 and the operative part of that judgment). 5 Judgment of 15 November 2018, BTA Baltic Insurance Company (C‑648/17, EU:C:2018:917, paragraph 48 and the operative part of that judgment). 6 Judgment of 20 June 2019, Línea Directa Aseguradora (C‑100/18, EU:C:2019:517, paragraph 48 and the operative part of that judgment). 7 BOE No 267 of 5 November 2004, p. 36662. 8 BOE No 222 of 13 September 2008, p. 37487. 9 BOE No 22 of 26 January 1999, p. 3440. 10 Throughout this Opinion, I use the terms ‘truck tractor’ and ‘tractor unit’ interchangeably as referring to the same type of device. I acknowledge that, in its question, the referring court refers to ‘truck tractor or tractor unit’. However, since it has not been suggested or explained what ought to be the difference, if any, between these two terms, I shall simply assume that they mean the same. 11 For the list of the five directives that Directive 2009/103 incorporated, consolidated, and repealed, see Article 29 of and Annex I to Directive 2009/103. See also Annex II, containing a correlation table concerning individual provisions. 12 Or previously in Article 3(1) of Council Directive 72/166/EEC of 24 April 1971 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 1972(II), p. 360). 13 Judgment of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146). 14 Ibid., paragraph 25. 15 Ibid., paragraph 59 and the operative part of that judgment. 16 Judgment of 28 November 2017, Rodrigues de Andrade (C‑514/16, EU:C:2017:908). 17 Ibid., paragraph 34. 18 Ibid., paragraph 35. 19 Ibid., paragraph 38. 20 Ibid., paragraph 42 and the operative part of that judgment. 21 Judgment of 20 December 2017, Núñez Torreiro (C‑334/16, EU:C:2017:1007). 22 Ibid., paragraph 34. 23 Ibid., paragraph 36. 24 Judgment of 15 November 2018, BTA Baltic Insurance Company (C‑648/17, EU:C:2018:917). 25 Ibid., paragraphs 45. 26 Ibid., paragraph 36. 27 Ibid., paragraph 38. 28 Ibid., paragraph 48 and the operative part of that judgment. 29 Judgment of 20 June 2019, Línea Directa Aseguradora (C‑100/18, EU:C:2019:517). 30 Ibid., paragraph 48 and the operative part of that judgment. 31 Order of 11 December 2019, Bueno Ruiz and Zurich Insurance (C‑431/18, not published, EU:C:2019:1082). 32 Ibid., paragraphs 16 to 26. 33 Ibid., paragraphs 40 to 43. 34 See also, for example, judgments of 7 September 2017, Neto de Sousa (C‑506/16, EU:C:2017:642); of 4 September 2018, Juliana (C‑80/17, EU:C:2018:661); or my recent Opinion in Ubezpieczeniowy Fundusz Gwarancyjny (C‑383/19, EU:C:2020:1003), which is currently pending. 35 See the correlation table in Annex II to Directive 2009/103. 36 See, further, on the complex interaction between the EU system and the green card system, my Opinion in Lietuvos Respublikos transporto priemonių draudikų biuras (C‑587/15, EU:C:2017:234, points 32 to 53). 37 See Article 4 of Directive 2009/103. See also judgments of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146, paragraph 49), or of 20 June 2019, Línea Directa Aseguradora (C‑100/18, EU:C:2019:517, paragraph 33 and the case-law cited). 38 The Court has repeatedly pointed out the aim of providing a high level of protection for victims of motor vehicle accidents when interpreting the directives – see, in particular, judgment of 4 September 2018, Juliana (C‑80/17, EU:C:2018:661, paragraph 47), or, most recently, order of 11 December 2019, Bueno Ruiz and Zurich Insurance (C‑431/18, not published, EU:C:2019:1082, paragraphs 33 to 34). 39 For case-law emphasising the minimum harmonisation dimension of the previous and current motor vehicle insurance directives with regard to various elements not expressly covered by the directives, see, for example, judgments of 23 October 2012, Marques Almeida (C‑300/10, EU:C:2012:656, paragraph 29); of 21 January 2016, ERGO Insurance and Gjensidige Baltic (C‑359/14 and C‑475/14, EU:C:2016:40, paragraph 40); or of 14 September 2017, Delgado Mendes (C‑503/16, EU:C:2017:681, paragraph 47). 40 See judgment of 4 September 2018, Juliana (C‑80/17, EU:C:2018:661, paragraph 39). For a detailed discussion, see also my Opinion in Ubezpieczeniowy Fundusz Gwarancyjny (C‑383/19, EU:C:2020:1003, points 39 and 48). 41 See already with judgment of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146, paragraph 59), subsequently repeated in all of the judgments outlined above in Section A of this Opinion. 42 Judgment of 20 June 2019, Línea Directa Aseguradora (C‑100/18, EU:C:2019:517, paragraph 48 and the operative part of that judgment). 43 See already Advocate General Jacobs in his Opinion in Wiener SI (C‑338/95, EU:C:1997:352, point 50), wisely noting that ‘detailed answers to very specific questions will not always promote such uniform application. Such answers may merely provoke further questions’. 44 See order of 11 December 2019, Bueno Ruiz and Zurich Insurance (C‑431/18, not published, EU:C:2019:1082, paragraph 44). 45 See, on this point, in relation to an issue indeed pertaining to Article 3 of Directive 2009/103, namely when the duty to take out civil liability insurance under that provision ends, my Opinion in Ubezpieczeniowy Fundusz Gwarancyjny (C‑383/19, EU:C:2020:1003). 46 Quoted above, in point 12 of this Opinion. 47 The Commission pointed to recitals 21 and 22 of Directive 2009/103 in this regard, indicating that the more likely victims of traffic accidents (intended to be protected by that directive) are in fact physical persons, be it passengers, pedestrians, cyclists, or any other users of the road, but not vehicles as such. 48 Again, in order to arrive at the conclusion that Article 5(2) of the Law on Vehicle Insurance, in a case such as the one in the main proceeding, excludes the damage to the semi-trailer to be covered by the insurance policy of the truck tractor, one has to interpret that national provision first. See above, point 9 and points 16 to 17 of this Opinion, outlining the opposing interpretations of that national provision. 49 See above, points 39 to 48 of this Opinion. 50 For another recent illustration of the same phenomenon, see, for example, the judgment of 10 December 2020, J & S Service (C‑620/19, EU:C:2020:1011).