OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

DELIVERED ON 20 OCTOBER 1983 ( 1 )

Mr President,

Members of the Court,

1. The facts

For a summary of the facts and the written observations I may refer to the very detailed report for the hearing.

Briefly, the facts of the case are as follows:

A Netherlands national living in the Netherlands was involved in a road accident in Belgium in which she suffered injuries. Her Netherlands sickness insurer, NV Tiel-Utrecht Schadeverzekeringsmaatschappij, reimbursed her medical expenses, which amounted to BFR 94069.

As a result of legal proceedings it was established that an unknown third party had caused the accident. Tiel-Utrecht subsequently brought an action as the subrogated party for the recovery of the amount it had paid against the Belgian Gemeenschappelijk Motorwaarborgfonds [Joint Motor Guarantee Fund, hereinafter referred to as “the Fund”], which was set up precisely in order to deal inter alia with cases of this sort (Article 70 of the Law of 9. 8. 1963 on compulsory sickness and invalidity insurance). The Fund, however, considered that it could not pay the sum claimed since the relevant provisions of Belgian law under which an action might be brought against it were to be construed as meaning that the term “insurance institution” used therein related only to Belgian institutions and not to Netherlands institutions.

Before the national court Tiel-Utrecht subsequently relied upon Article 93 of Regulation No 1408/71, arguing that on the basis of that article the provision of Belgian law ought to be interpreted “by analogy”. In my view, what was meant is that by means of Article 93 of Regulation No 1408/71 the Netherlands insurer should be placed on the same footing as the Belgian insurance institution referred to in the relevant provisions of Belgian law. Furthermore, the Netherlands insurance company must be regarded as an “institution” within the meaning of the regulation.

The Fund argued inter alia that the regulation was not applicable since a contractual relationship existed between the insurance company, Tiel-Utrecht, and the insured and that national legislation could not be applied “by analogy”.

Be that as it may, the national court submitted two questions for a preliminary ruling on the interpretation of Article 93 of Regulation No 1408/71.

2. The preliminary questions

The preliminary questions read as follows:

“1. Whether or not they arc regarded as ‘national federations’ [Landsbonden] or ‘relief funds’ [Hulpkas] within the meaning of Article 2 (d) of the Belgian Law of 9 August 1963, must the ‘institutions’ referred to in Article 93 of Regulation No 1408/71 be understood as being ‘insurance institutions’ within the meaning of the last paragraph of Article 70 of the Belgian Law of 9 August 1963?

2. Must the expressions ‘liable third parties’ and ‘third party bound to compensate for the injury’ appearing in Article 93 of the regulation be taken to mean the same as the terms ‘vergoedingsplichtigen’. [persons liable to make good the damage] and ‘aansprakelijken’ [persons liable] appearing in Article 1382 et seq. of the Belgian Civil Code? Or must they instead be construed more widely as covering any or every other possible right of recovery?”

In the grounds of its judgment the national court states that Article 93 must be interpreted in two regards to enable the present dispute to be resolved. It assumes that the Netherlands insurer should “clearly” be regarded as an “institution” within the meaning of Regulation No 1408/71. It arrives at that clear conclusion on the basis of Article 1 (n) of the regulation, in which it is stated that “institution” means “the body or authority responsible for administering all or part of the legislation”. It wonders, however, whether the Netherlands insurer may be treated as a Belgian insurance institution for the purposes of Article 70 of the Law of 9 August 1963. Its reasoning is, I think, that, as the Netherlands insurer must be regarded as an “institution” within the meaning of the regulation, the question is whether the Belgian insurance institution may likewise be regarded as an “institution” within the meaning of the regulation, so as to justify placing the Netherlands insurance institution on the same footing as the Belgian institution. The meaning of the second question is clear from its wording.

3. Preliminary points concerning the scope of Regulation No 1408/71

Before considering the questions referred to the Court the Commission expresses doubts, in its written observations, as to whether in fact this case raises a question of Community law, in view of the scope of Regulation No 1408/71.

In the first place, it raises queries as regards the scope of the regulation ratione personae, as it is not clear from any document that the Netherlands national in question is covered by the regulation, either as a worker or as a member of a worker's family.

It appears, however, that objections have been raised in the main proceedings to the application of Regulation No 1408/71 owing to the contractual relationship existing between the Netherlands national concerned and her insurance company, in view of which it is contended that the case does not concern “legislation” within the meaning of Article 4 (1). Under the heading “Matters covered” that article states that the regulation is to apply to “all legislation concerning the following branches of social security”. Article 93 also speaks of benefits received “under the legislation” of a Member State. In Article 1 (j) “legislation” , is defined as “regulations and other provisions and all other implementing measures, present or future ...”. In the next sentence it is expressly stated that “the term excludes provisions of existing or future industrial agreements ...”. ( 2 )

Both in the case-documents (Supplementary Decision No 14) and in answer to a question from the Court, Tiel-Utrecht has confirmed that its relationship with the injured person is purely contractual in nature.

In view of that information and the provisions of Article 4 (1) of the regulation it must, in my view, be concluded that the national court's question on Article 93 of Regulation No 1408/71 lies outside the field of application ratione materiae of the regulation. That might lead to the view that no question of Community law is raised and that the preliminary question is purposeless. In that event there would be no grounds for answering the question submitted by the national court (cf. Case 132/81, Rijksdienst voor Werknemerspensionen v Vlaeminck, [1982] ECR 2953).

The Court has consistently held, however, that in proceedings for a preliminary ruling it does not rule upon the national provisions or facts underlying the dispute but confines itself to interpreting the Community provisions (see, for example, Case 117/77, Pierik, [1978] ECR 825). In such circumstances it is permissible to reframe the question in such a way that the answer providing an interpretation of the relevant provision of Community law will help the national court to decide the case (see, for example, Case 111/76, van den Hazel, [1977] ECR 901).

That principle is also applicable in the present case: the Court could refer, particularly in the non-operative part of its judgment, to the requirements for the application of the regulation before answering the questions (see, for example, Case 130/78, Salumificio di Cornuda [1979] ECR 867, paragraphs 17 and 18) or declaring them irrelevant for the purposes of resolving the issue in the main proceedings.

That approach towards preliminary questions does not appear to me to be inconsistent with the Vlaeminck judgment to which I referred earlier, since in that case too the relevant provisions of Community law were first examined before the conclusion was reached that the preliminary question was purposeless.

4. Answering the questions raised by the national court

In its first question the national court inquires about the meaning of the term “institution” in Article 93 of Regulation No 1408/71 and asks whether that term must be interpreted as also covering the “insurance institutions” referred to in the relevant provision of Belgian law.

In accordance with the judgments which I have referred to earlier, the Court cannot of course give any ruling on provisions of national law as such but must confine itself to interpreting the Community provision in question.

The term “institution” appearing in Article 93 is defined in Article 1 (n) of the regulation as follows: “‘institution’ means, in respect of each Member State, the body or authority responsible for administering all or part of the legislation.”

With regard to that definition, I would again point out that the national court assumed that the Netherlands insurer is an “institution” for the purposes of the regulation. That is a matter of doubt since the case concerns insurance on a contractual basis and the institution concerned cannot therefore be a body responsible for administering legislation. The difficulty is, however, that the national court is requesting an interpretation of Community law not with regard to the Netherlands insurer but with regard to the aforesaid Belgian institutions. In view of the Belgian Law referred to, which concerns compulsory sickness and invalidity insurance, there may indeed be some doubt in this regard as to the interpretation of Community law. It is for the national court to assess the value of that interpretation.

In order to give the national court an answer to its first question which also enables it to assess the nature of the Netherlands insurance institution the Court may to a large extent rely on the answer proposed by the Commission. In view of the question submitted, the Court's answer, unlike that proposed by the Commission, will admittedly have to be slanted towards the Belgian institutions. However, an abstract formulation of the Court's answer will automatically render that answer applicable to the Netherlands insurance company.

On the second question I can be brief. In its decisions the Court has drawn a distinction between the origin of the right of subrogation as such and the exercise of that right. I refer here to Case 44/65 (Hessische Knappschaft, [1965] ECR 965), Case 27/69 {Entraide Médicale, [1969] ECR 405), Case 78/72 (L'Étoile — Syndicat General v de Waal, [1973] ECR 499) and Case 72/76 (Landesversicherungsanstalt Rheinland-Pfalz v Töpfer, [1977] ECR 271).

It is clear from those decisions that as a conflict-of-laws rule Article 93 (or Article 52 of Regulation No 3) provides no more than that the right of subrogation is governed by the legislation administered by the institution which provides the benefit and that if that legislation gives such a right it must be recognized in the other Member States. On the other hand, the exercise of that right, the substantive claim, is governed by the “rules of the national law” defining the accrual and limits of the right to compensation vested in the victim or his legal successors. It does not therefore change the applicable law concerning the accrual and extent of the right.

As far as this question is concerned I refer entirely to the Commission's proposed answer.

5. Conclusion

In conclusion I propose that the Court should answer the question submitted to it as follows:

1. According to Article 1 (n) of Regulation No 1408/71, the term “institution”, as referred to inter alia in Article 93 of Regulation No 1408/71, means, in respect of each Member State, the body or authority responsible for administering all or part of the social security legislation, which, according to Article 1 (j) of that regulation, does not include contractual arrangements. An insurance institution may be regarded as an institution within the meaning of Regulation No 1408/71 only to the extent to which it is responsible for administering all or part of the applicable social security legislation.

2. For the purposes of Article 93 of Regulation No 1408/71, the law applicable by virtue of the lex fori to the victim's right of action determines whether in exercising its right of subrogation or direct right the institution may only proceed against the liable third party or whether it may also exercise its right against non-liable third parties who are nevertheless bound to pay compensation under special statutory provisions.

6. Final comment

For the sake of completeness I would however add that at the hearing the Commission's representative pointed out, in answer to a written question from the Court, that its proposed answers left open the question whether the fact that the Belgian legislation allows only Belgian insurance institutions to claim against the Fund is in accordance with Articles 7 and 59 et seq. of the EEC Treaty. With regard to that statement, I too consider that the answer which the Commission has proposed to the second question and which I have adopted does not need to be amplified in that respect. That issue is not prejudged by the proposed answers and the national court lias not submitted any separate question in that regard, so the Court will naturally be unable to answer the questions of interpretation which that issue raises.

( 1 ) Translated from the Dutch.

( 2 ) Translator's note: The Dutch, French and Italian versions of Regulation No 1408/71 use expressions which appear to be wider than the term “industrial agreements”: namely, contractuele bepalingen, dispositions conventionnelles and disposizioni contrattuali, all of which might be rendered as “contractual arrangements”.