OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN

DELIVERED ON 12 APRIL 1984

My Lords,

On 21 August 1976 there was an accident between two motor cars, one of them owned by a Mr Fantozzi, a resident of the Kingdom of Belgium, the other registered in France but driven by a man who had stolen it.

The latter car was insured by its owner with a French insurance company. That company refused to accept liability for the damage to the car, relying on a clause in the insurance policy which excluded liability for an accident caused by a stolen car driven by the thief. The company also relied on the fact that, under French law, insurance cover is not required where losses are caused by a vehicle which has been stolen.

Mr Fantozzi brought proceedings against the Bureau Belge des Assureurs Automobiles, which is the national bureau representing insurance companies in Belgium. At first instance, the court held that the Bureau was liable to compensate Mr Fantozzi for the damage caused. The Bureau appealed to the Court of Appeal at Mons. That court was aware that there had been conflicting decisions between national courts as to the interpretation of Article 2 (2) of Council Directive 72/166 of 24 April 1972 (Official Journal 1972, L 103, p. 1), as amended. Accordingly it referred to the Court of Justice a question for a preliminary ruling under Article 177 of the EEC Treaty, viz :

“Does it follow from the rules of Community law that the duty imposed on national insurers' bureau includes the duty to pay, compensation for damage caused in the territory of one Member State of the EEC by a vehicle normally based in the territory of another Member State of the EEC if the driver of the vehicle acquired it by theft or duress?”

Counsel for the Bureau, as a preliminary procedural point, objected to the fact that his written submissions to the Court were not accepted. It is said that this decision was taken by the Registrar of the Court and was erroneous. The position appears to be this: when the reference was received from the national court, notice was given to the lawyers who had acted in the national proceedings on behalf of the Bureau. That was done on 8 July 1983 and they acknowledged receipt on 11 July. There was then a period of two months in which the written submissions might be presented. In fact no such submissions were received until December 1983 when they were forwarded to the Court by counsel now instructed on behalf of the Bureau. They were not accepted because they were out of time. Counsel wrote to ask that his written submissions should be accepted.

On 26 January 1984 the Registrar of the Court notified counsel that the decision not to accept the submissions had been taken on the authority of the President of the Court and after obtaining the opinion of the President of the Chamber, and that the Registrar had been acting on this authority when refusing to accept the written proceedings. It seems to ine that what was done here was in accordance with the practice of the Court not to accept submissions which are received long out of time. The notification to the lawyers acting in the national proceedings was, as I see it, in accordance with the practice of the Court. In any event, it seems to me that the Bureau has had, and has taken, the opportunity, by its oral submissions, to put before the Court its full submissions on the matters which are in issue.

The question relates to the interpretation which is to be given to Article 2 (2) of the directive to which I have referred. That article provides that the provisions of the directive are to take effect, “after an agreement has been concluded between the nine national insurers' bureaux under the terms of which each national bureau guarantees the settlement, in accordance with the provisions of national law on compulsory insurance, of claims in respect of accidents occurring in its territory, caused by vehicles normally based in the territory of another Member State, whether or not such vehicles are insured”. The crucial words are “in accordance with the provisions of national law on compulsory insurance”.

A number of arguments have been advanced today as to the construction of those words, which were canvassed in Case 64/83 Bureau Central Français vFonds de Garantie Automobile,9 February 1984. In my opinion in that case, I dealt in detail with those arguments and I anticipate that it would not be of assistance to repeat them here today. The Court, in its judgment, held that under Article 2 (2) a vehicle normally based in the territory of a Member State is assimilated to a vehicle properly insured in accordance with the national legislative provisions on compulsory insurance in force in the Member State where the accident takes place, at the time it takes place. Those words which I have emphasized were to be taken as referring to the limits and conditions of civil liability applicable to compulsory insurance, it being understood that the driver of the vehicle, at the moment when the accident happened, was treated as being covered by a valid insurance in conformity with that legislation.

In consequence it follows that the national bureau in the Member State where the accident occurred guarantees the settlement of any claims in accordance with those legislative provisions, whether or not the driver of the vehicle concerned is in fact covered by insurance. In addition, the Court held that a vehicle bearing a properly issued registration plate must be considered to be normally based in the territory of the Member State in which it was registered, even if, at the material time, authorization to use the vehicle had been withdrawn, and whether or not the withdrawal of authorization invalidated the registration. As a result, the fact that such a vehicle has been stolen or fraudulently obtained does not affect the question whether it is normally based in a particular Member State. If the national legislation of the Member State where the accident occurs does not require compulsory insurance cover in respect of loss caused when the vehicle is stolen, the national bureau is not bound, under Article 2 (2), to guarantee the settlement of claims arising from such a loss. On the other hand, if such national legislation does so provide, the national bureau is liable even if the vehicle is not covered by insurance pursuant to the national legislation of the territory in which it is normally based.

It is quite clear that the directive does not prevent the national bureaux from concluding an agreement which is more extensive in scope than the agreement envisaged by the directive, since the object of the directive was simply to establish certain minimum conditions with which the guarantee agreement to be made between the national insurers' bureaux had to comply.

It is submitted, on behalf of the Bureau and the United Kingdom Government, however, that it is not for the Court to give a preliminary ruling on the interpretation of agreements entered into by the national bureaux. That is plainly right. Such agreements are neither acts of the institutions of the Community, nor are they the statutes of bodies established by act of the Council within the meaning of Article 177.

Then it is said that a new Directive, 84/5 of 30 December 1983 (Official Journal 1984, L 8, p. 17), which has made certain changes in the law relating to the insurance of motor vehicles, should influence the Court's decision in this case. It is suggested that the fact that it has dealt with the problem arising in this case means that the matter was not covered by the previous directive. The Court, in Case 64/83, was aware of the draft of that directive and I adhere to the view that it should not be looked at when the Court is construing the form of Article 2 (2) of Directive 72/166 in force at the relevant time.

Accordingly, in my opinion, the question referred should be answered on the lines that the words “in accordance with the provisions of national law on compulsory insurance” in Article 2 (2) of Directive 72/166 mean that the national insurers' bureau in the Member State where the accident takes place guarantees the settlement of the claims arising therefrom as if the vehicle were insured in accordance with the national law on compulsory insurance in force in that State.

The costs of the parties to the proceedings before the national court fall to be dealt with by that court and no order should be made as to the costs of the intervening government or of the Commission.