Opinion of the Advocate General — ECLI:EU:C:2010:745
Date: 2010-12-07
Language of the case: Portuguese
Subject matter: Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Portugal

Summary conclusion 75. To summarise, it must be concluded that the First, Second and Third Directives do not preclude a national provision of civil law such as that in Article 506 of the Portuguese Código Civil, which in a situation such as that in the main proceedings, where it is not possible to establish the contributions to the cause of the accident, results in the injured party’s claim arising from liability for risk being reduced by a flat rate of 50%. VII – Conclusion 76. In view of the above considerations, I propose that the Court of Justice should answer the question referred by the Tribunal da Relação Porto as follows: The First Directive 72/166/EEC 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, the 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 and the Third Council Directive 90/232/EEC 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 do not preclude a national provision of civil law, which in a situation such as that in the main proceedings, where a motor vehicle collision has occurred in which none of the drivers can be shown to be at fault for the accident, and which has caused personal injury and material loss to one of the drivers, results in the injured party’s claim arising from liability for risk being reduced by a flat rate of 50%. 1 – Original language of the Opinion: German Language of the case: Portuguese 2 – Pursuant to the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community of 13 December 2007 (OJ 2007 C 306, p. 1), the reference for a preliminary ruling is now governed by Article 267 of the Treaty on the Functioning of the European Union. 3 – Directive 72/166/EEC 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 1972(II), p. 360), (‘the First Directive’). 4 – 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 (OJ 1984 L 8, p. 17) (‘the Second Directive’). 5 – Third Council Directive 90/232/EEC 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’). 6 – According to the terms used in the TEU and the TFEU, the term ‘European Union law’ is used as an umbrella term for Community law and European Union law. Where individual primary law provisions are referred to in what follows, the applicable provisions ratione temporis are cited. 7 – OJ 2009 L 263, p. 11. 8 – Case C-537/03 Candolin and Others [2005] ECR I-5745. 9 – Case C‑348/98 Mendes Ferreira and Delgado Correia Ferreira [2000] ECR I‑6711, paragraph 29. 10 – Cited in footnote 8 above. 11 – Case C‑356/05 Farrell [2007] ECR I‑3067. 12 – Case C‑347/87 Triveneta and others v Commission [1990] ECR I-1083, paragraph 16 and Case C‑467/08 Padawan [2010] ECR I-0000, paragraph 61). 13 – See my Opinion of 6 July 2010 in Case C‑137/08 Pénzügyi Lízing [2010] ECR I‑0000, in relation to the way in which tasks are divided between the Court of Justice and the national courts in connection with the interpretation and application of European Union law. 14 – See Case C‑306/99 BIAO [2003] ECR I‑1, paragraph 89; Case C-217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 17; and Case C-48/07 Les Vergers du Vieux Tauves SA [2008] ECR I-10627, paragraph 17). 15 – See Reichert-Facilidades, F., ‘Europäisches Versicherungsvertragsrecht?’ Festschrift für Ulrich Drobnig zum siebzigsten Geburtstag (published by Jürgen Basedow/Klaus J. Hopt/Hein Kötz), Tübingen 1998, p. 127. 16 – See Lemor, U., Kommentar zur Kraftfahrtversicherung (published by Hans Feyock/Peter Jacobsen/Ulf Lemor), 3rd edition, Munich 2009, 1st part, paragraph 5. 17 – 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 (OJ 2000 L 181, p. 65). 18 – As Schauer, M., ‘Bemerkungen zur Umsetzung der 4. Kfz-Haftpflicht-Richtlinie im österreichischen Recht’, Recht und Risiko – Festschrift für Helmut Kollhosser, Volume I (Insurance law), Karlsruhe 2004, p. 293, correctly states, the aim of the Fourth Directive was to give the injured party the chance of being able to enforce his claim in his Member State of residence. Thus, the Fourth Directive led to a considerable improvement in the protection of injured parties in accidents occurring abroad. 19 – Directive 2005/14/EC of the European Parliament and of the Council of 11 May 2005 amending Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC and 90/232/EEC and Directive 2000/26/EC of the European Parliament and of the Council relating to insurance against civil liability in respect of the use of motor vehicles (OJ 2005 L 149, p. 14). 20 – See Candolin (cited in footnote 8 above, paragraph 18 and Case C‑129/94 Ruiz Bernáldez [1996] ECR I‑1829, paragraph 20). 21 – Candolin (cited in footnote 8 above, paragraph 24) and Farrell (cited in footnote 11 above, paragraph 33). See Mendes Ferreira and Delgado Correia Ferreira (cited in footnote 9 above, paragraphs 23 and 29). See also on the interpretation of the First, Second and Third Directives with effect for the EFTA/EEA States, the case-law of the EFTA Court (in accordance with the principle of homogeneity in EEA law), including amongst others the judgment of the EFTA Court of 14 June 2001 in Case E‑7/00 Helgadóttir, paragraph 30, and of 20 June 2008 in Case E‑8/07 Nguyen, paragraph 24. The directives are also applicable to the EFTA/EEA States pursuant to No. 8, 9 and 19 in Annex IX to the EEA Agreement. 22 – Farrell (cited in footnote 11 above, paragraph 32). 23 – Candolin and Others (cited in footnote 8 above, paragraph 27). 24 – Ibid. (paragraph 28) and Farrell (cited in footnote 11 above, paragraph 34). This case-law may be traced back to similar case-law of the EFTA Court, namely to the judgment of the EFTA Court of 17 November 1999 in Case E-1/99 Storebrandand Finanger, EFTA Court Report 1999, p. 119, paragraph 29, on which Advocate General Geelhoed apparently based his deliberations in his Opinion of 10 March 2005 in Candolin and Others. 25 – Candolin and Others (cited in footnote 8 above, paragraph 29) and Farrell (cited in footnote 11 above, paragraph 35). 26 – Candolin and Others (cited in footnote 8 above, paragraph 30) and Farrell (cited in footnote 11 above, paragraph 35). 27 – See in relation to this Baumann, H., ‘Zur Überwindung des Trennungsprinzips im System von Haftpflicht und Haftpflichtversicherung’, Festgabe Zivilrechtslehrer 1934/1935 (published by Walther Hadding), Berlin 1999, p. 13. 28 – See Looschelders, D., Münchener Kommentar zum Versicherungsvertragsgesetz (published by Theo Langheid/Manfred Wandt), 1st edition 2010, Volume 1, Chapter 1, paragraph 117 and by Bar, C., ‘Das Trennungsprinzip und die Geschichte des Wandels der Haftpflichtversicherung’, Archiv für die civilistische Praxis, 1981, No. 181, p. 326. 29 – See paragraph 10 of the written observations of the German Government. 30 – See paragraph 13 of the written observations of the Italian Government. 31 – See point 50 of this Opinion. 32 – As further support for this view, in connection with this, the fact that recital 13 in the preamble to the Fourth Directive (which is not applicable here) expressly states that the provisions of the directives do not ‘[affect] ... the substantive law to be applied in each individual case’ should be evaluated. Schauer, M., loc. cit. (footnote 18), p. 294, considers that to provide grounds to suppose that the Fourth Directive does not change anything concerning applicable law on liability. 33 – Cited in footnote 9 above. 34 – Ibid., paragraph 28. 35 – In Candolin and Others, the provisions of the Finnish statute on motor vehicle insurance (liikennevakuutuslaki) were under discussion. In Farrell, again the case concerned provisions relating to compulsory insurance, which were codified in the Irish statute on road traffic (Road Traffic Act) and in the regulation on road traffic (Road Traffic Regulations). 36 – In Candolin and Others, the defendant driver (Mr Ruokoranta) of the vehicle remained liable to pay compensation pursuant to the applicable national provisions regardless of the fact that the passengers should have noticed his drunkenness. It is apparent from paragraph 12 of the judgment, that the first instance court ordered the defendant to pay compensation to the claimants. It may also be inferred from points 20 and 23 of the Opinion of Advocate General Geelhoed in that case that the compensation which he had to pay on the basis of the damage caused was not reduced. 37 – It is apparent from paragraph 1.4 of the order for reference in Farrell and from point 14 of the Opinion of Advocate General Stix-Hackl of 5 October 2006 that the claimant was successful with her claim for compensation. Only the assessment of damages was adjourned until the hearing. 38 – See Jansen, N., Die Struktur des Haftungsrechts, Tübingen 2003, p. 115. 39 – See Basedow, J./Fock, T., in: Europäisches Versicherungsvertragsrecht (published by Jürgen Basedow/Till Fock), Tübingen 2002, Volume I, p. 54, which makes the claim against the insurer for the payment of money dependent upon the occurrence of the event which caused the damage. 40 – See Basedow, J./Fock, T., loc. cit (footnote 39) p. 108 et seq. See also in Europäisches Versicherungsvertragsrecht (published by Jürgen Basedow/Till Fock), Tübingen 2002, e.g. on Spain, Schlenker, S., Volume II, p. 1098, on Italy, D’Usseaux, F. B., Volume I, p. 727 et seq., on Greece, Papathoma-Baetge, A., Volume I, p. 636, and on Austria, Lemmel, U., Volume II, p. 1098. 41 – See Basedow, J./Fock, T., loc. cit (footnote 39), p. 108 et seq. 42 – See Jansen, N., loc. cit (footnote 38), p. 61, 112, 115, who points out that compensation provisions are based on a person who is responsible for damage having to compensate for that damage. Schiemann, G., in Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen, Book 2, the law of obligations, Paragraphs 249-254 (the law on compensation), preliminary remark to Paragraphs 249 et seq. explains that for reasons of compensatory justice the general function of compensation is to provide the injured party with a substitute for the damage suffered. That substitute must be assessed in such a way as to entail as far as possible the condition of being hypothetically free of the damage but not so as to provide the injured party with anything more than that. 43 – The Greek Philosopher Aristotle, in his work Nicomachean ethics (Book V), differentiated both types of justice from one another and in so doing authoritatively informed the concept of justice. See, in relation to this, my Opinion of 11 May 2010 in Case C‑467/08 Padawan [2010] ECR I‑0000, point 74). 44 – See Jansen, N., loc. cit (footnote 38), p. 114, who draws attention to the apportionment of liability burdens amongst collective institutions providing compensation for loss or injury, that is by means of insurance or the social security system. He suggests that frequently it is in fact the case that neither the person causing the damage nor the injured party are involved in the proceedings concerning compensation. Instead, the claimant frequently brings proceedings against the civil liability insurer of the person causing the damage. Proceedings concerning compensation and liability provisions appear therefore in the view of the writer to be concerned, economically speaking, not with compensation between the person causing the damage and an injured party, but with the apportionment of damage between two collective institutions providing compensation for damage. Basedow, J./Fock, T., loc. cit (footnote 39), p. 6, state that in so far as the assumption of risks in the context of an insurance relationship is concerned, private insurance competes in part with the social security systems which are frequently very well developed in the Member States of the European Union. The mutual similarity shows, they say, in particular, in the compulsory insurance cover which is also known to the private insurance system in many legal systems. 45 – See Mansel, H.-P., Direktansprüche gegen Haftpflichtversicherer, Heidelberg 1986; Lüttringhaus, J. D., ‘Der Direktanspruch im vergemeinschafteten IPR und IZVR’, Versicherungsrecht, 4/2010, p. 183, 186. 46 – See paragraph 13 of the observations of the Austrian Government. 47 – See paragraph 20 of the observations of the German Government. 48 – See point 57 of this Opinion. 49 – See point 53 of this Opinion. 50 – See point 61 of this Opinion. 51 – See paragraph 11 of the Italian Government’s written observations. 52 – See point 53 of this Opinion. 53 – Origer, P.-C., Assurance et Responsabilité: bulletin de l’AIDA, Association internationale de droit des assurances, Section Luxembourg, 2006, No. 9, p. 167, criticises, for example, the fact that the Court in Candolin and Others did not clarify what should be understood by a ‘proportionate reduction in the compensation’ with the result that legal uncertainty has not been eliminated.