OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN

DELIVERED ON 24 NOVEMBER 1983

My Lords,

A car belonging to SA Gambetta Auto was damaged in Paris on 19 July 1979 by a car bearing an Austrian registration plate. The licence to use the latter cat-had, however, been withdrawn from 9 March 1979 because the car had ceased to be insured on 7 March 1979. The driver and the owner not having been traced, Gambetta sued the Bureau Central Français, representing automobile insurance companies in France, and the Fonds de Garantie Automobile, which compensated those suffering damage from uninsured cars, both of which had denied liability. Having failed before the court of first instance, Gambetta appealed.

An, if not the, essential question in the case was whether Gambetta could rely on Council Directive 72/166/EEC of 24 April 1972 (OJ, L 103 of 2 May 1972, p. 1), as amended by Council Directive 72/430/EEC of 19 December 1972 (OJ, L 291 of 28 December 1972, p. 62).

Prior to that directive coming into effect it was necessary to check at the frontier of Member States that the driver of a motor vehicle moving between Member States had a green card evidencing insurance against civil liability for damage caused by such vehicle. The primary object of the directive was to abolish such checks in order to facilitate the free movement in the Community of vehicles based in the Member States. A necessary precondition of the removal of control was that national insurance bureaux in the Member States should guarantee compensation in respect of loss or injury, giving entitlement to compensation, caused in the territory of the Member States of each of the national insurance bureaux respectively, and that all Community vehicles travelling in the Community should be covered by compulsory insurance against civil liability throughout the Community.

The directive, accordingly, by Article 3, obliged Member States to ensure that civil liability in respect of the use of vehicles “normally based in its territory” is covered by insurance. By Article 2, once the Commission had ascertained that the insurance bureaux of the Member States had concluded an agreement under which each bureau guaranteed the settlement, in accordance with the provisions of its 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”, and had fixed a date for the directive to take effect (save as to Articles 3 and 4), Member States were obliged to abolish checks on insurance against civil liability in respect, of vehicles normally based in the territory of another Member State.

Article 7 of the directive further provided that vehicles “normally based” in a third country should be treated as vehicles “normally based” in the Community if the national bureaux of all the Member States severally guaranteed settlement of claims in respect of accidents occurring in their territory caused by such vehicles. Once satisfied that such an agreement had been reached the Commission was required to fix the date from which documentary evidence on insurance should no longer be required in respect of vehicles coming from such third countries.

The decisive factor is thus the territory in which the vehicle is “normally based”. That was defined in Article 1 (4) of the directive as “the territory of the State in which the vehicle is registered; or in cases where no registration is required for a type of vehicle but the vehicle bears an insurance plate, or a distinguishing sign analogous to the registration plate, the territory of the State in which the insurance plate or the sign is issued; or in cases where neither the registration plate nor insurance plate nor distinguishing sign is required for certain types of vehicle, the territory of the State in which the person who has the custody of the vehicle is permanently resident”.

The national bureaux made an agreement in compliance with Article 2 of the directive and in compliance with Article 7 of the directive, so far as concerned Austria and a number of other third countries, on 12 December 1973 and by two decisions of 6 February 1974 (74/166/EEC and 74/167/EEC, OJ, L 87 of 30 March 1974, pp. 13 and 14) the Commission appointed 15 May 1974 as the date when the checks on vehicles “normally based” in the European territory of the Member States and Austria, inter alios, should cease. The contracting parties to the agreement based themselves on the directive and agreed, so far as is relevant, that “those vehicles regarded as being normally based” in a territory should be “vehicles registered in that territory”. Once such a vehicle entered the territory of another party and was subject to compulsory insurance there the user should be deemed to be insured and to be the holder of a valid certificate of insurance whether or not he held one.

On the facts summarized above, Gambetta accordingly had to show that the car causing the damage was normally based in Austria, and it sought to do so on the basis that is was registered in Austria.

The Court of Appeal in Paris referred to the Court of Justice under Article 177 of the EEC Treaty, in the light of the above facts, the question whether a car could be and should be considered as registered in a State whose registration plate it carried at a time when the authorities of the State declared that the licence to use the car had been cancelled.

The question raised has apparently been widely canvassed, has produced different answers in different States and from different bureaux, and is of general importance. It falls to be answered despite the fact that the parties have reached agreement as to the acceptance of Gambetta's claim against the Bureau.

Before the French courts, the Bureau, acting on behalf of the Austrian insurers, contended that a car, the licence of which had by law been withdrawn once it ceased to be insured, could not be said to be validly and lawfully registered in Austria.

Before the Court of Justice, the Bureau has, however, felt itself free to put forward submissions as to what it contends the correct answer to the question referred should be. In the result it has supported Gambetta's claim that the car in question was “normally based” in Austria for the purposes of the directive. The Italian Government and the Commission have intervened in the proceedings and contended for the same result.

All the parties at the hearing were, in my view, right to stress that the object of the directive was to facilitate free movement, and to that end to avoid detailed enquiries at the frontier as to matters not specifically covered by the definition of “normally based” in a territory. Accordingly it seems clear that if a car continues in fact to be “registered” in a territory it is not relevant to inquire whether it was insured there or whether it could be lawfully used on the road by reason of a lack of insurance, or indeed whether the de facto registration was valid.

If, as I understand may be the position here, the car remained on the Austrian register, the answer to the question referred must be in the affirmative even if the car could not lawfully be used on the road. If it were otherwise the investigation of the validity of a registration could raise detailed and lengthy enquiries contrary to the clear intention of the directive.

If, on the other hand, the effect of the withdrawal of the licence is that the registration itself is removed or annulled, a more difficult question arises. All the parties before the Court contend that the registration plates borne by the vehicle determine the State in which it is normally based, whether or not the vehicle is still registered. It is said that, if the registration plate were not sufficient to establish the State in which a vehicle is normally based, frontier checks on the validity of registration and on insurance would have to be introduced.

If the words “the territory of the State in which the vehicle is registered” stood alone this would not seem to me to be a correct construction. A car may be registered even if it does not carry a registration plate; it may not be registered if it does so. There may be a presumption that if a plate is carried, the car is registered; that is, however, a presumption rebuttable by proof that it is not in fact registered.

These words do not, however, stand alone. The second indent contemplates that for the vehicles referred to, an insurance plate or a distinguishing sign analogous to a registration plate are determinative of the territory in which the vehicle is normally based. The relevant question is in which State was the plate or sign issued. It is neither relevant nor necessary to go on to ask whether the authorization to carry the plate or sign has been cancelled. To adapt a well-known quotation “The plate's the thing”, ( 1 ) and, if the issuing authority cancels, it must recover the plate or sign if it wishes to prevent the vehicle being treated for the purposes of the directive as being normally based in the territory of the State where it was issued.

The third indent of the definition deals with a residual category where no registration plate or insurance plate or distinguishing sign are required. That seems to me to contemplate “are required” and “are borne” in the light of the second indent. For this purpose a registration plate is on the same footing as the other signs. Accordingly, although the drafting is unfortunate, it seems to me that the critical question is whether a registration plate or other relevant sign is carried. If it is, that is determinative of the territory where the vehicle is normally based, and “the territory of the State in which the vehicle is registered” means for the purposes of this directive the territory of the State in which the registration plate borne by the car is issued.

This conclusion is limited to the case where a plate has been issued by a competent authority in respect of the specific vehicle which carries it. Other situations referred to in the written pleadings and at the hearing — where e.g. an apparent plate is a forgery, or where a genuine plate has been transferred to a vehicle in respect of which it was not issued from another vehicle by a thief or someone else — raise different questions which do not fall for decision here.

I am, therefore, of the opinion that the question referred should be answered on the following lines:

“A car which bears a registration plate issued in the territory of the State in which it has lawfully been registered is normally based, within the meaning of Directive 72/166, in the territory of that State even though, at the material time, authorization to use the car has been withdrawn, whether or not the withdrawal of such authorization causes the registration to be invalidated or itself withdrawn.”

( 1 ) Hamlet, II. ii. 641.