Case C‑460/14

Johannes Evert Antonius Massar

v

DAS Nederlandse Rechtsbijstand Verzekeringsmaatschappij NV

(Request for a preliminary ruling from the Hoge Raad der Nederlanden)

‛Reference for a preliminary ruling — Legal expenses insurance — Directive 87/344/EEC — Article 4(1) — Free choice of lawyer for an insured person — Inquiry or proceedings — Definition — Authorisation granted by a public body to an employer for the purpose of terminating an employment contract’

Summary — Judgment of the Court (Tenth Chamber), 7 April 2016

Freedom of movement for persons — Freedom of establishment — Legal expenses insurance — Directive 87/344 — Right of the insured party freely to choose his legal representative — Inquiry — Definition — Procedure before a public body authorising an employer to dismiss an employee covered by legal expenses insurance — Included

(Council Directive 87/344, Art. 4(1)(a))

Article 4(1)(a) of Directive 87/344 on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance must be interpreted as meaning that the term ‘inquiry’ referred to in that provision includes a procedure at the end of which a public body authorises an employer to dismiss an employee who is covered by legal expenses insurance.

First, an interpretation of the term ‘inquiry’ that seeks to limit the scope of that term to legal proceedings in administrative matters only, that is to say, those that take place before a court in the strict sense, would deprive the term ‘inquiry’, expressly used by the legislature of the European Union, of its meaning.

Second, the objective pursued by Directive 87/344, in particular Article 4 thereof, concerning the free choice of lawyer or representative, is to protect, broadly, the interests of insured persons. The general scope and obligatory nature that the right of the insured party to choose his lawyer or representative is recognised to possess precludes a restrictive interpretation of Article 4(1)(a) of the Directive.

In circumstances where there is no action available to a dismissed worker against the decision of an Employee Insurance Agency granting the employer authorisation to dismiss on economic grounds, and where, if the employee, at a later stage, brings an action for damages for manifestly unjustified dismissal before the civil courts, the decision in such a case cannot call into question the decision taken by the Agency, since the employee’s rights are affected by the decision of that Agency and his interests as an insured person require protection in the context of the procedure before that body.

Furthermore, such a broad interpretation of Article 4(1)(a) of Directive 87/433 is necessary because the Court has already recognised the right freely to choose a lawyer or representative of an employee who finds himself in the same situation, but whose contract of employment had been terminated by a judicial decision.

Finally, as regards the possible financial consequences for legal expenses insurance schemes, they may not lead to a restrictive interpretation of Article 4(1)(a) of Directive 87/344. That directive does not seek the complete harmonisation of the rules applicable to legal expenses insurance contracts and the Member States remain free, as EU law currently stands, to determine the body of rules applicable to those contracts, on condition that the principles laid down by that directive are not rendered meaningless. Thus, the exercise by the insured person of the right to choose his representative does not mean that, in certain cases, limitations may not be set on the costs to be borne by the insurer.

(see paras 18, 20, 23-28, operative part)