There is nothing in the wording or the objectives of Directive 2009/13 to suggest that it is intended to lay down conflict-of-law rules. More particularly, Article 14 of that directive, read together with recital 26 thereof, merely requires Member States to take the measures necessary so that motor insurance policies cover, on the basis of a single premium, all the territory of the European Union for the term of the contract, and that they guarantee, on the basis of that premium, in each of the Member States the cover required by its law or the cover required by the law of the Member State where the vehicle is normally based when that cover is higher. That provision therefore deals exclusively with the territorial extent and level of cover that the insurer is required to provide, so as to ensure adequate protection for the victims of road traffic accidents. No rule can be inferred according to which the law of the Member State thus determined governs the allocation of responsibility between insurers.

Article 14(b) of Directive 2009/103 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 must be interpreted as not containing any specific conflict-of-law rule intended to determine the law applicable to the action for indemnity between insurers in circumstances to determine the law applicable to an action for indemnity brought by the insurer of a tractor unit, which compensated the victims of an accident caused by the driver of the vehicle, against the insurer of the trailer coupled to the vehicle at the time of the accident. Therefore, that provision does not satisfy the conditions laid down respectively in Article 2 of Regulation No 593/2008 on the law applicable to contractual obligations (Rome I) and Article 27 of Regulation No 864/2007 on the law applicable to non-contractual obligations (Rome II).

As regards the respective scopes of Regulation No 593/2008 on the law applicable to contractual obligations (Rome I) and Regulation No 864/2007 on the law applicable to non-contractual obligations (Rome II), the definitions of ‘contractual obligation’ and ‘non-contractual’ obligation set out therein must be interpreted independently, by reference to their scheme and purpose. As is clear from recital 7 of each of those regulations, account should be taken not only of the aim of consistency in the reciprocal application of those regulations, but also in the application of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters which, inter alia, draws a distinction, in Article 5 thereof, between matters relating to contract and matters relating to tort, delict and quasi-delict.

Regulation No 593/2008 on the law applicable to contractual obligations (Rome I) and Regulation No 864/2007 on the law applicable to non-contractual obligations (Rome II) must be interpreted to the effect that the law applicable to an action for indemnity between the insurer of a tractor unit, which has compensated the victims of an accident caused by the driver of that vehicle, against the insurer of the trailer coupled to it at the time of that accident, is to be determined in accordance with Article 7 of the Rome I Regulation if the rules of liability in tort, delict and quasi-delict applicable to that accident by virtue of Article 4 et seq. of the Rome II Regulation provide for an apportionment of the obligation to compensate for the damage.

First, the very existence of the right of the insurer of a tractor unit, the driver of which caused an accident, to bring an action for indemnity against the insurer of a trailer, once the victim has been compensated, cannot be inferred from the insurance contract, but is based on the premiss that the owner of the trailer will concomitantly incur liability in tort, delict or quasi-delict in relation to the same victim. Therefore, such an obligation to pay compensation by the owner of the trailer must be regarded as a ‘non-contractual’ obligation, within the meaning of Article 1 of the Rome II Regulation. Therefore, it is in the light of the provisions of that regulation that the law applicable to the obligation must be determined. According to Article 4 of that regulation, save as otherwise provided, the law applicable to such a non-contractual obligation is that of the country in which the harm was sustained, that is, the country in which the damage directly resulting from the accident is suffered. According to Article 15(a) and (b) of the Rome II Regulation, that law will determine the basis and extent of liability and the grounds for any division of that responsibility. Therefore, it is in the light of the law of the place of the direct harm that the debtors of the obligation to compensate the victim and, if appropriate, the respective contributions of the owner of the trailer and of the owner or driver of the tractor unit to the damage caused to the victim must be determined.

Second, the obligation for an insurer to compensate the damage caused to a victim arises not from the damage caused to the latter but from the contract between it and the insured party who is liable. Such compensation is therefore based on a contractual obligation, since the law applicable to such an obligation must be determined in accordance with the provisions of the Rome I Regulation.

Finally, regarding the issue whether the insurer of a tractor unit who has compensated a victim has, in some circumstances, a right to bring an action in subrogation against the insurer of the trailer, it must be observed that Article 19 of the Rome II Regulation distinguishes between matters subject to the tort/delict regime and those subject to the contractual regime. That provision applies in particular to the situation in which a third party, namely an insurer, has compensated the victim of an accident, the creditor of an obligation in tort/delict of damages owed by the driver or owner of a motor vehicle, in order to discharge the duty to satisfy that obligation. More particularly, Article 19 of the Rome II Regulation provides that, in that case, the issue of any subrogation of the victim’s rights is governed by the law applicable to the obligation of the third party, namely the civil liability insurer, to compensate that victim. Thus, the insurer’s obligation to cover the civil liability of the insured party with respect to the victim resulting from the contract of insurance concluded with the insured party and the conditions under which the insurer may exercise the rights the victim of the accident has against the persons responsible for the accident depend upon the national law governing that insurance contract, which are determined in accordance with Article 7 of the Rome I Regulation. However, the law applicable to the determination of the persons who may be held liable and the allocation of responsibility between them and their respective insurers remains subject, in accordance with Article 19 of the Rome II Regulation, to Article 4 et seq. thereof.

(see paras 50-54, 56-59, 64, operative part)