Case C‑5/15

AK

v

Achmea Schadeverzekeringen NV

and

Stichting Achmea Rechtsbijstand

(Request for a preliminary ruling from the Gerechtshof Amsterdam)

(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 — Objection to refusal of authorisation for care)

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

Freedom of movement for persons — Freedom of establishment — Legal expenses insurance — Directive 87/344 — Free choice of lawyer for an insured person — Inquiry or proceedings — Definition — Objection to refusal of authorisation for care — 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 covers the stage of an objection before a public body during which that body gives a decision against which an action may be brought before the courts.

First, an interpretation of the term ‘inquiry’, in a manner 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, seek review of the lawfulness of the contested decision and determine definitively the legal position of the person concerned, 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 militate against a restrictive interpretation of Article 4(1)(a) of that directive.

In a situation where the rights of the insured person are affected both by the initial decision of the public body and by the decision taken in response to an objection, inasmuch as the factual assessment is made during that administrative stage and that assessment constitutes the basis of the decision made in the context of subsequent judicial administrative proceedings, the insured person requires legal protection during a procedure that constitutes the indispensable preliminary stage for the bringing of an action before the administrative court.

Moreover, such a broad interpretation of the right to a free choice of lawyer or representative would not have the effect of transforming all legal expenses insurance into insurance based on the principle of ‘covering costs’, within the meaning of Article 3(2)(c) of Directive 87/344 since the measures provided for in Article 3(2)(a) and (b) retain their scope even in the case in which an independent right for the person with legal expenses insurance freely to choose his representative is inferred from Article 4(1)(a) of that directive.

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 freely 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, 21-26, operative part)