CELEX: 62012CC0306
Language: en
Date: 2013-05-30
Title: Opinion of Mr Advocate General Cruz Villalón delivered on 30 May 2013. # Spedition Welter GmbH v Avanssur SA. # Reference for a preliminary ruling: Landgericht Saarbrücken - Germany. # Insurance against civil liability in respect of the use of motor vehicles and enforcement of the obligation to insure against such liability - Directive 2009/103/EC - Article 21(5) - Claims representative - Authority to accept service of judicial documents - National rule making the validity of that service conditional on the express grant of an authority to accept it - Interpretation in conformity with Union law. # Case C-306/12.

OPINION OF ADVOCATE GENERAL
      CRUZ VILLALÓN
      delivered on 30 May 2013 (
            1
         )
      
         Case C‑306/12
      
      
         Spedition Welter GmbH
      
      
         v
      
      
         Avanssur SA
      
      
         (Request for a preliminary ruling from the Landgericht Saarbrücken (Germany))
      
      ‛Directive 2009/103/EC — Insurance against civil liability in respect of the use of motor vehicles — Article 21(5) — Claims representative — Representative’s authority to accept service of judicial documents — National legislation under which service is valid only if the defendant has expressly granted such authority to the representative — Direct effect — Obligation to interpret national law in conformity with European Union law — Triangular effect of a directive’
      
               1. 
            
            
               The Landgericht Saarbrücken (Regional Court, Saarbrücken) has referred to the Court of Justice two questions concerning various doubts as to the interpretation of, and possibility of relying on, Article 21(5) of Directive 2009/103/EC relating to insurance against civil liability in respect of the use of motor vehicles and enforcement of the obligation to insure against such liability. (
                     2
                  ) More specifically, the referring court asks whether that provision authorises a civil court to serve an application on the ‘claims representative’ when the latter has not been expressly empowered to accept such service by the defendant. In addition, if the answer to the first question is in the affirmative, the referring court also has doubts as to whether it is possible to rely on Article 21 in a ‘triangular’ context such as that in the case at issue, in which a directive is being applied to a public authority but has indirect repercussions on an individual.
            
         
         I – Legal context
      
      A – European Union law
      
      
               2.
            
            
               Directive 2009/103 repealed Directive 2000/26 on the approximation of the laws of the Member States relating to insurance against civil liability [in respect of the use of motor vehicles]. (
                     3
                  ) However, the new directive retained the wording of the provisions of which an interpretation has been requested in this case, in which the following recitals and, in particular, Articles 20 and 21 are significant.
               
                        ‘(20)
                     
                     
                        Motor vehicle accident victims should be guaranteed comparable treatment irrespective of where in the Community accidents occur.
                     
                  …
               
                        (34)
                     
                     
                        Parties injured as a result of a motor vehicle accident falling within the scope of this Directive and occurring in a State other than that of their residence should be entitled to claim in their Member State of residence against a claims representative appointed there by the insurance undertaking of the responsible party. This solution would enable damage suffered by injured parties outside their Member State of residence to be dealt with under procedures which are familiar to them.
                     
                  
                        (35)
                     
                     
                        This system of having claims representatives in the injured party’s Member State of residence affects neither the substantive law to be applied in each individual case nor the matter of jurisdiction.
                     
                  …
               
                        (37)
                     
                     
                        It should be provided that the Member State where the insurance undertaking is authorised should require that undertaking to appoint claims representatives resident or established in the other Member States to collect all the necessary information in relation to claims resulting from such accidents and to take appropriate action to settle the claims on behalf and for the account of the insurance undertaking, including the payment of compensation. Claims representatives should have sufficient powers to represent the insurance undertaking in relation to persons suffering damage from such accidents, and also to represent the insurance undertaking before national authorities including, where necessary, before the courts, in so far as this is compatible with the rules of private international law on the conferral of jurisdiction.
                     
                  …
               
                  Article 20
               
               Special provisions concerning compensation for injured parties following an accident in a Member State other than that of their residence
               1.   The purpose of Articles 20 to 26 is to lay down special provisions applicable to injured parties entitled to compensation for loss or injury resulting from accidents occurring in a Member State other than the Member State of residence of the injured party and caused by the use of vehicles insured and normally based in a Member State.
               Without prejudice to the legislation of third countries on civil liability and private international law, these provisions shall also apply to injured parties resident in a Member State and entitled to compensation in respect of any loss or injury resulting from accidents occurring in third countries whose national insurer’s bureaux have joined the green card system whenever such accidents are caused by the use of vehicles insured and normally based in a Member State.
               2.   Article 21 and 24 shall apply only in the case of accidents caused by the use of a vehicle:
               
                        (a)
                     
                     
                        insured through an establishment in a Member State other than the State of residence of the injured party; and
                     
                  
                        (b)
                     
                     
                        normally based in a Member State other than the State of residence of the injured party.
                     
                  
                  Article 21
               
               Claims representatives
               1.   Each Member State shall take all measures necessary to ensure that all insurance undertakings covering the risks classified in class 10 of point A of the Annex to Directive 73/239/EEC, other than carrier’s liability, appoint a claims representative in each Member State other than that in which they have received their official authorisation.
               The claims representative shall be responsible for handling and settling claims arising from an accident in the cases referred to in Article 20(1).
               The claims representative shall be resident or established in the Member State where he is appointed.
               2.   The choice of its claims representative shall be at the discretion of the insurance undertaking
               The Member States may not restrict this freedom of choice.
               3.   The claims representative may act for one or more insurance undertakings.
               4.   The claims representative shall, in relation to such claims, collect all information necessary in connection with the settlement of claims and shall take the measures necessary to negotiate a settlement of claims.
               The requirement of appointing a claims representative shall not preclude the right of the injured party or his insurance undertaking to institute proceedings directly against the person who caused the accident or his insurance undertaking.
               5.   Claims representatives shall possess sufficient powers to represent the insurance undertaking in relation to injured parties in the cases referred to in Article 20(1) and to meet their claims in full.
               They must be capable of examining cases in the official language(s) of the Member State of residence of the injured party.
               6.   The appointment of a claims representative shall not in itself constitute the opening of a branch within the meaning of Article 1(b) of Directive 92/49/EEC, and the claims representative shall not be regarded as an establishment within the meaning of Article 2(c) of Directive 88/357/EEC or an establishment within the meaning of Regulation (EC) No 44/2001.’
            
         B – National law
      
      
               3.
            
            
               Directive 2009/103 was transposed into German law by the Law on the supervision of insurance (Versicherungsaufsichtsgesetz) (‘the VAG’). Specifically, Article 21(5) of the Directive was transposed by Paragraph 7b(2) of the VAG, which reads as follows:
               ‘The claims representative shall be resident or established in the State where he is appointed. … He shall possess sufficient powers to represent the insurance undertaking in relation to injured parties and to meet their claims in full. He must be capable of handling cases in the official language or official languages of the State where he is appointed.’
            
         
               4.
            
            
               The rules governing service of process in German civil proceedings are contained in Paragraph 166 et seq. of the Code of Civil Procedure (Zivilprozessordnung). Paragraph 171, concerning service via a representative, provides as follows:
               ‘Service on a representative appointed by formal act shall have the same effect as service on the principal. The representative shall produce a written power of attorney.’
            
         
         II – Facts and main proceedings
      
      
               5.
            
            
               Spedition Welter is an undertaking domiciled in Germany and the owner of a lorry which was involved in a road traffic accident that occurred on the outskirts of Paris on 24 June 2011. As a result of the accident, Spedition Welter brought an action before the German courts against the driver of the other vehicle involved, who is resident in France and whose civil liability cover was provided by an insurance undertaking, Avanssur SA, also domiciled in France.
            
         
               6.
            
            
               The court of first instance forwarded the application to AXA Versicherungs AG, Avanssur SA’s claims representative in Germany.
            
         
               7.
            
            
               AXA Versicherungs AG rejected the application on the ground that the defendant had not expressly granted it authority to accept service on its behalf.
            
         
               8.
            
            
               The court of first instance declared the action inadmissible as it was vitiated by a serious formal defect, for it had not been correctly served on the defendant. According to the court of first instance, the application should have been sent directly to Avanssur SA in accordance with the legislation on judicial cooperation in force, specifically Regulation (EC) No 1393/2007 (
                     4
                  ) on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters.
            
         
               9.
            
            
               The applicant took issue with that interpretation and lodged an appeal with the Landgericht Saarbrücken, relying directly on Article 21(5) of Directive 2009/103. The applicant takes the view that that provision confers a statutory authority on the representative to accept service in the context of an action for compensation for damage resulting from the use of motor vehicles.
            
         
               10.
            
            
               In view of the doubts raised by the applicant’s submissions, the Landgericht Saarbrücken stayed the proceedings and made an order referring the following question to the Court of Justice for a preliminary ruling.
            
         
         III – The questions referred to the Court of Justice for a preliminary ruling
      
      
               11.
            
            
               This reference for a preliminary ruling from the Landgericht Saarbrücken was received at the Registry of the Court on 26 June 2012. The questions contained in that reference are worded as follows:
               
                        ‘1.
                     
                     
                        Is Article 21(5) of Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 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 (OJ 2009 L 263, pp. 11-31; ‘Directive 2009/103’) to be interpreted as meaning that the powers of the claims representative include the authority to accept service on behalf of the insurance undertaking, with the result that, in the context of an action for compensation for accidental damage brought by the injured party against the insurance undertaking, service by the court on the claims representative appointed by the insurance undertaking is effective against the insurance undertaking?
                     
                  If the answer to the first question is in the affirmative:
               
                        2.
                     
                     
                        Does Article 21(5) of Directive 2009/103 have direct effect in such a way that the injured party may rely on it before the national court, with the result that the national court must consider service on the claims representative acting as the insurance undertaking’s “representative” as valid service on that undertaking, even though the representative has not been granted authority to accept service by formal act and national law does not establish a statutory authority to accept service in such a case, though service otherwise satisfies all the conditions laid down by national law?’
                     
                  
         
               12.
            
            
               Written observations have been submitted by Avanssur SA, the Republic of Austria, the Republic of Portugal and the European Commission.
            
         
         IV – Analysis
      
      A – The first question referred
      
      
               13.
            
            
               By the first question, the Landgericht Saarbrücken asks whether Article 21(5) of Directive 2009/103 gives ‘claims representatives’ authority to accept service of process addressed to the insurance undertaking in the course of civil proceedings.
            
         
               14.
            
            
               The parties intervening in the proceedings have adopted different positions. On the one hand, the Republic of Austria and the Commission submit that the aforementioned Article 21(5) of Directive 2009/103 guarantees an authority to accept service that covers both administrative and judicial proceedings. On the other hand, Avanssur SA and the Republic of Portugal take the view that the provision in question makes no mention of judicial proceedings, thus ruling out any such authority in circumstances such as those at issue.
            
         
               15.
            
            
               Before turning to the interpretation of the aforementioned Article 21(5) of Directive 2009/103, I consider it necessary to make some preliminary observations.
            
         
               16.
            
            
               First of all, the case before the German courts is being heard by a court having international jurisdiction. Neither the parties nor the German courts which have given rulings to date are in any doubt as to the international jurisdiction of those courts to give a ruling in that case. As I shall demonstrate later, this is an important point because it dispels many of the concerns relating to the wording of Article 21(5) of Directive 2009/103. We are therefore faced with a dispute concerned exclusively with the scope of an authority to accept service, an issue that does not in any way affect the international jurisdiction of the courts before which the case is being heard.
            
         
               17.
            
            
               A further, no less relevant, point must also be considered. The power being called into question is the power of a representative for the specific purpose of accepting service of a judicial document, namely, an application originating proceedings. The powers of representation conferred by Spedition Welter on AXA Versicherungs AG do not include its defence in judicial proceedings, or the generic representation of the defendant before the German courts. In Spedition Welter’s view, the powers of representation provided for in Article 21(5) of Directive 2009/103 are confined to the service of judicial documents, without in any way affecting Avanssur SA’s status as defendant or, still less, the conditions under which it must exercise its defence. The representative’s authority to accept service of judicial documents has the advantage of obviating the need for the applicant to effect service abroad or, in this case, service in accordance with the procedures laid down in Regulation No 1393/2007, which, as has been pointed out in the documents before the Court, involve translation costs which service through the representative would avoid.
            
         
               18.
            
            
               Consequently, the issue in this case is confined to a precise, specific point. In short, it must be clarified whether a ‘claims representative’ within the meaning of Directive 2009/103 possesses the authority to accept service of a judicial document, in particular, an application initiating legal proceedings.
            
         
               19.
            
            
               That having been said, I shall now analyse the drafting history of Article 21(5) of Directive 2009/103 before going on to interpret that provision in the light of the purpose and scheme of the Directive as a whole.
            
         1. Drafting history of Article 21(5) of Directive 2009/103
      
               20.
            
            
               As mentioned above, Directive 2009/103 repealed Directive 2000/26, which had in turn extensively amended Directives 73/239/EEC and 88/357/EEC. (
                     5
                  ) Article 21(5) of Directive 2009/103 originates from Article 4 of Directive 2000/26. The latter provision, which was therefore incorporated in 2000, was one of many improvements made to the harmonised scheme of rules governing insurance against civil liability in respect of the use of motor vehicles.
            
         
               21.
            
            
               The Commission has always been in favour of the idea of the claims representative’s having authority to receive service of judicial documents issued by a court hearing a case concerning an insurer’s civil liability, and gave expression to that view in the Proposal for a Fourth Directive published on 10 October 1997, (
                     6
                  ) which contained a provision that was the predecessor to that which eventually became Article 4, worded as follows:
               ‘The claims representative shall have sufficient powers to represent the undertaking in relation to persons suffering damage who pursue claims, including the payment in full of such claims, and to represent it or, where necessary, to have it represented, before the courts concerning such claims in so far as compatible with the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters and with the other rules of private international law on the determination of jurisdiction, and before the authorities of the Member State where he represents the insurer.’ (
                     7
                  )
            
         
               22.
            
            
               In the explanatory memorandum to the proposal, the Commission added that the purpose of that provision was to establish the consequences that the representative’s action would have for the victim. (
                     8
                  ) Given that the claims representative would act as the insurance undertaking’s legal representative in the settlement of claims, his actions would be binding on the insurance undertaking in its relations with the victim. The Commission went on to add the following:
               ‘This paragraph does not confer jurisdiction on the courts of the State of the victim’s residence. This would be inappropriate in cases which must normally be determined on the basis of a law other than the lex fori, i.e. the rules of private international law of the court hearing the dispute. Thus, the fact that the representative will have power to represent the insurer ‘before the courts’ will be of limited practical importance in the context of this Directive.’ (
                     9
                  )
            
         
               23.
            
            
               It is also necessary to emphasise that the Commission insisted that the procedural aspect of the representative’s powers should not in any way affect the rules on international jurisdiction. For that reason, the Commission was at pains to emphasise a fact which is significant for the purposes of the case at issue here, that is to say, that the procedural impact of the representative’s powers would be modest or, in the Commission’s own words, ‘of limited practical importance’. In making that point, the Commission was referring to the fact that the representative’s powers in matters of procedure would be confined to precisely that, namely, representing the insurance undertaking for the purposes of certain procedural formalities, function whose principal advantage is that it facilitates the formalities of service without altering the rules conferring international jurisdiction.
            
         
               24.
            
            
               During the second reading in the European Parliament, the provision was amended. The reference to ‘national authorities’ in Article 3(5) was moved to the explanatory memorandum. The agreement reached by the Commission, the Council and the European Parliament is reflected in one of the Commission’s opinions, in which, in order to avoid any possible changes to the rules of private international law, it agrees to remove the reference to the courts in the articles of the directive. However, the consensus reached by the Community institutions was that a reference to the courts should be retained precisely in order to ensure at least ‘limited’ powers of representation, in keeping with the position supported by the Commission at the start of the legislative process. (
                     10
                  ) It was that consensus which eventually shaped the final text of Directive 2000/26 and which would later be reflected in Directive 2009/103.
            
         
               25.
            
            
               In short, it is apparent from the drafting history of Directive 2009/103 that the legislature’s intention was that the powers enjoyed by the representative of an insurance undertaking in the victim’s State of residence should include, albeit to a limited extent, acceptance of service of judicial documents. At the same time, conscious of the repercussions which the representative’s function as defined above might have on the guarantee that would be afforded to the defendant by the rule conferring jurisdiction on the courts of the defendant’s domicile, both the Commission and the European Parliament were concerned from the outset of the legislative process that the representative’s authority to accept service should not have any adverse effect on the common or special rules of private international law applicable to cross-border cases concerning civil liability for road traffic accidents.
            
         
               26.
            
            
               None the less, as the parliamentary documents show, the impact of the representative’s authority to accept service was in any event intended to be ‘limited’. It seems reasonable to assume that such ‘limited’ impact should at the very least include the power to receive service of judicial documents on the defendant’s behalf in cases where the applicant has instituted proceedings before the courts of his country of residence. In those circumstances, service of the application on the representative does no more than formally establish the relationship between the parties from the point of view of procedural law. If the dispute is to be heard before the courts of the applicant’s country of domicile, the defendant will have to instruct a lawyer licensed to practise in the applicant’s country. Subsequent judicial documents will be served in the applicant’s language because that will also be the language of the defendant’s lawyer. In short, the impact which the authority to accept service provided for in Article 21(5) of Directive 2009/103 will have on the courts will, as required by the rationale of that provision, be limited.
            
         2. Schematic interpretation of Article 21(5) of Directive 2009/103
      
               27.
            
            
               As I have already pointed out, the provision in Article 21(5) of Directive 2009/103 to the effect that the claims representative should have ‘sufficient powers’ was intended to cover powers of representation in relation to both injured parties and public authorities, including judicial authorities, albeit on the basis of ‘limited’ functions. Confirmation of that intention on the part of the legislature is made explicit in recital 37 in the preamble to the directive, which categorically states that the sufficient powers include representing the insurance undertaking ‘before national authorities’ and, where necessary ‘before the courts’. (
                     11
                  )
            
         
               28.
            
            
               The first subparagraph of Article 21(5) is followed by a second subparagraph which states that claims representatives ‘must be capable of examining cases in the official language(s) of the Member State of residence of the injured party’. Whilst the provisions discussed above confirm that the claims representative’s powers are fully effective in relation to judicial authorities, the provision just cited further confirms that those powers include the arrangements enabling the injured party to present his claim to the representative in his own language. As I made clear in point 17 above, the very reason Spedition Welter asks the court to serve the application on Avanssur SA’s representative in Germany is to avoid having to pay the costs of the translation required by Regulation No 1393/2007. Recital 34 in the preamble to Directive 2009/103 emphasises this point by highlighting the importance of the injured party’s being able to obtain settlement of his claim ‘under procedures which are familiar to him’.
            
         
               29.
            
            
               It should also be emphasised that recognition of a representative’s authority to accept service of judicial documents does not adversely affect the rules of private international law applicable to the matter at issue. That precaution is important, since it must be remembered that, although the authority granted to a claims representative also empowers him to represent the insurance undertaking before the judicial authorities, the Community institutions took care not to introduce any rule that might upset the delicate balance that characterises the rules on international jurisdiction and on the law applicable to actions for compensation for loss or damage caused by road traffic accidents with a cross-border dimension. That concern is reiterated in recital 35, recital 36 in fine and recital 38 in the preamble to Directive 2009/103.
            
         
               30.
            
            
               The foregoing arguments do not appear to be refuted by the proposition put forward by Avanssur SA and the Republic of Portugal to the effect that the express absence of a provision empowering claims representatives to accept service of judicial documents confirms that it was the legislature’s intention to exclude such a power. As I made clear in points 20 to 24 of this Opinion, the legislature’s intention was that such a power should be included, albeit to a limited extent, which interpretation, moreover, is also supported by the scheme of Directive 2009/103. There is, however, a further argument, effectively deployed by the Commission, which weakens the contention put forward by Avanssur and the Republic of Portugal.
            
         
               31.
            
            
               As was made clear above, Article 22 provides for a compensation procedure enabling the injured party to present his claim directly to the insurance undertaking’s representative in his Member State of residence, and allowing him to pursue his claim in his own language. In addition, Article 18 of Directive 2009/103 requires the Member States to adopt measures to ensure that any party injured as a result of an accident caused by a vehicle covered by insurance ‘enjoys a direct right of action against the insurance undertaking covering the person responsible against civil liability.’ Germany did exactly that, as the referring court points out when it states that the German courts have international jurisdiction in this case. (
                     12
                  )
            
         
               32.
            
            
               It is surprising to say the least, then, that, once the preliminary formalities have been carried out directly with the claims representative, and given that the injured party enjoys a direct right of action against the insurance undertaking, the judicial documents may not then also be served on the claims representative, whose function, in keeping with the objectives pursued by Directive 2009/103, is to make it easier for the injured party to pursue his claim and, where appropriate, to bring an action for compensation.
            
         
               33.
            
            
               Consequently, in the light of the arguments set out above, I consider that, having regard to its history and schematic context, Article 21(5) of Directive 2009/103 must, in so far as it refers to the ‘sufficient powers’ of the claims representative, be interpreted as including the representative’s authority to accept service of judicial documents, such as the service of an application lodged by the injured party in the course of bringing a civil action before a court with international jurisdiction to hear the case.
            
         B – The second question
      
      
               34.
            
            
               By the second question, the referring court asks whether Article 21(5) of Directive 2009/103 has direct effect in such a way that the injured party may rely on it before the national court and the latter must consider service on the insurance undertaking to be effective where service has been effected on the claims representative as the insurance undertaking’s ‘representative’.
            
         
               35.
            
            
               It is common knowledge that determining the direct effect of rules of Union law, including directives, is not a condition of their applicability. A rule of Union law may be applicable without necessarily having direct effect. (
                     13
                  ) Direct effect consists, therefore, in the capacity of a rule of Union law to resolve a matter of fact on its own authority, without any need of the intervention of other rules, whether of Union or of national law. (
                     14
                  ) However, when a rule of European Union law does not have direct effect, it may continue to play an important role in settling a case, in so far as it is of use to the court responsible for settling it. In the latter case, the rule of European Union law will not have direct effect but it will none the less be ‘applicable’ in the sense described.
            
         
               36.
            
            
               The most obvious example of the applicability of a rule of Union law’s not being synonymous with its having direct effect can be seen in the obligation to interpret national law in conformity with Union law. A rule of Union law lacking direct effect, for example an untransposed directive effective as between individuals, may be applicable to a particular case, since the national court is in any event obliged to interpret national law in the light of that directive. The directive is applicable and the court has to apply it in settling the case. The fact that, since it does not have direct effect, the court may apply it only for interpretative purposes and in so far as this is not specifically precluded by national law, is another matter. That is the very situation with which we are faced here, and it is for that reason that we must begin to answer the question raised by the referring court by first of all examining whether it is possible to undertake an interpretation of the German law at issue in conformity with Directive 2009/103. If the answer were to be in the affirmative, it would not then be necessary to determine whether Article 21(5) of that directive has direct effect.
            
         
               37.
            
            
               The Commission has argued that it is possible to interpret the German law at issue in the light of Article 21(5) of Directive 2009/103. In its opinion, German law, as contained in Paragraph 7b(2) of the VAG, reproduces verbatim the content of Article 21(5) of Directive 2009/103. If, therefore, as I have previously suggested, that provision of Directive 2009/103 is to be interpreted as empowering a claims representative to accept service of judicial documents, Paragraph 7b(2) of the VAG cannot be interpreted otherwise.
            
         
               38.
            
            
               I share the Commission’s opinion. After all, once the Court of Justice has confirmed the interpretation of a provision of Union law, the national rules directly transposing and faithfully reproducing it must be interpreted in the same way as that provision. Should it be the case, as it is here, that the national transposing provision uses the same form of words as the Union provision, it is obvious that the only permissible interpretation is one common to both the Union provision and the national provision. In this case, without prejudice to the fact that this is a decision which should properly be made by the referring court, I take the view that Paragraph 7b(2) of the VAG must be interpreted in the same way as the rule of European Union law from which it originates and to which it is closely linked, in this case Article 21(5) of Directive 2009/103.
            
         
               39.
            
            
               Furthermore, it cannot in any circumstances be argued that the ZPO categorically excludes the possibility of a claims representative’s having authority to accept service of judicial documents. Paragraphs 170 and 171 expressly refer to the possibility of effecting service through a representative. Although Paragraph 170 limits that possibility to specific situations, Paragraph 171 makes general provision for it in cases where the principal has appointed a representative by formal agreement. It should be recalled that Article 21(1) of Directive 2009/103 requires Member States to take all measures necessary to ensure that insurance undertakings appoint a claims representative in each Member State. Such representatives will obviously be appointed by way of formal agreements with insurance undertakings. Consequently, if Directive 2009/103 guarantees for claims representatives authority to accept service, the agreements concluded between the representative and the principal might act as an expression of intent constituting in actual fact the authority previously guaranteed by operation of the directive.
            
         
               40.
            
            
               It is obviously for the referring court to undertake the interpretation of its national law in conformity with Article 21(5) of Directive 2009/103. This is a task which the referring court must perform, as the Court of Justice has had occasion to note, by ‘the application of interpretative methods recognised by national law … in order to achieve the result sought by the directive’. (
                     15
                  ) In so far as that possibility exists, and it would appear that it does, there is no need to give a ruling on the direct effect of that provision.
            
         
               41.
            
            
               On the other hand, before concluding the analysis of the second question referred, it is necessary to clarify whether either of the two exceptions to the obligation to interpret national law in conformity with European Union law, as required by the case-law of the Court of Justice, is applicable here.
            
         
               42.
            
            
               In the first place, the obligation for a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law cannot serve as a basis for an interpretation contra legem of national law. (
                     16
                  ) However, that limitation applies only when the conflict between different rules is unequivocal, which is not so in this case. Subject to confirmation by the referring court, Paragraph 171 of the ZPO provides for authority to accept service generally, without expressly ruling out a situation such as that at issue here. To the foregoing must be added the provisions of Paragraph 7b(2) of the VAG, cited above, the schematic interpretation of which in conjunction with Paragraph 171 of the ZPO should not lead to an irresolvable conflict between rules of national and Union law.
            
         
               43.
            
            
               In the second place, the obligation for a national court to refer to the content of a directive when interpreting and applying the relevant rules of its national law is also limited by the general principles of law, in particular the principles of legal certainty and non-retroactivity. (
                     17
                  )
            
         
               44.
            
            
               However, such a situation does not arise here. Although the dispute between Spedition Welter and Avanssur concerns those two parties, it would more accurately be defined, in so far as concerns service of judicial documents, as a ‘triangular situation’ involving not only the two parties in question, of course, but also the public authorities. After all, when one person asks a German court to serve a judicial document on another person, it is to the Member State that the applicant addresses his request. The defendant is an indirect addressee of the applicant’s request, which is clearly directed to the court.
            
         
               45.
            
            
               With regard to situations of this kind, the Court of Justice has repeatedly held that ‘mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from invoking the provisions of a directive against the Member State concerned’. (
                     18
                  ) It is on just such mere adverse repercussions that Avanssur SA might rely in order to oppose an interpretation of the German law at issue in conformity with Article 21(5) of Directive 2009/103. However, as I have just explained, repercussions of this kind do not preclude the application of a directive and certainly do not rule out the possibility of its being used for the purposes of interpreting national law.
            
         
               46.
            
            
               Consequently, in the light of the arguments set out above, I consider that, in so far as German law contains a transposing provision which uses the same form of words as Article 21(5) of Directive 2009/103, the national court must interpret the national law in conformity with the provisions of the aforementioned Article 21(5) of Directive 2009/103. In the circumstances of this case, there would appear to be no limits to an interpretation in conformity with Union law, for Union law does not serve as the basis for an interpretation contra legem of national law, and does not infringe the general principles of legal certainty and non-retroactivity, although it is for the referring court to verify this assessment.
            
         
         V – Conclusion
      
      
               47.
            
            
               In the light of the foregoing, I propose that the Court of Justice answer the questions referred for a preliminary ruling by the Landgericht Saarbrücken as follows:
               
                        (1)
                     
                     
                        When it refers to the ‘sufficient powers’ of the claims representative, Article 21(5) of Directive 2009/103 must be interpreted as including authority to accept service of judicial documents, such as the service of an application lodged by an injured party in the course of bringing a civil action before a court with international jurisdiction to hear the case.
                     
                  
                        (2)
                     
                     
                        In so far as German law contains a transposing provision that uses the same form of words as Article 21(5) of Directive 2009/103, the national court must, in the circumstances of the present case, interpret the national law in conformity with the provisions of Article 21(5) of Directive 2009/103.
                     
                  
         (
            1
         )	Original language: Spanish.
      (
            2
         )	Directive of the European Parliament and of the Council of 16 September 2009 (OJ 2009 L 263, p. 11)
      (
            3
         )	Directive 2000/26 of the European Parliament and of the Council of 16 May 2000 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and amending Directives 73/239/EEC and 88/357/EEC (OJ 2000 L 181, p. 65).
      (
            4
         )	Regulation of the European Parliament and of the Council of 13 November 2007 (OJ 2007 L 324, p. 79).
      (
            5
         )	First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance (OJ 1973 L 228, p. 3) and Second Council Directive 88/357/EEC of 22 June 1988 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 73/239/EEC (OJ 1988 L 172, p. 1).
      (
            6
         )	Proposal for a Fourth Motor Insurance Directive, Brussels, 10 October 1997 (COM(97) 510 final – 97/0264 (COD)).
      (
            7
         )	Emphasis added.
      (
            8
         )	Proposal for a Fourth Directive, cited in footnote 6, pp. 6-9.
      (
            9
         )	Ibid., p. 8.
      (
            10
         )	In the Commission’s Opinion on the European Parliament’s amendments to the Council’s common position regarding the proposal for a Directive, Brussels, 22 February 2000 (COM(2000)94 final – 1997/0264 (COD)), p. 4, the Commission expressed the importance of retaining a reference to the courts ‘to impede the interpretation that the powers of the claims representative may be confined only to administrative bodies and not to courts. Reference to private international law is necessary to exclude any possible interference with national jurisdiction rules.’
      (
            11
         )	Emphasis added.
      (
            12
         )	The referring court refers in this regard to the provisions of Paragraphs 68 and 72-74 of the ZPO.
      (
            13
         )	See, in this regard, K. Lenaerts and T. Corthaut, ‘Of birds and hedges: the role of primacy in invoking norms of EU law’, European Law Review, 31, No 3, 2006.
      (
            14
         )	See inter alia Case 26/62 Van Gend & Loos [1963] ECR 1, pp. 11-13; Case 28/67 Firma Molkerei-Zentrale Westfalen v Lippe [1968] ECR 143, pp. 152-3; Case 41/74 Van Duyne [1974] ECR 1337, paragraph 7; and Case 12/81 Garland [1982] ECR 359, paragraphs 14 and 15.
      (
            15
         )	Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835, paragraph 116.
      (
            16
         )	See inter alia Case C-268/06 Impact [2008] ECR I-2483, paragraph 100; Joined Cases C-378/07 to C-380/07 Angedilaki and Others [2009] ECR I-3071, paragraph 199; and Case C‑282/10 Dominguez [2012] ECR.
      (
            17
         )	See inter alia Case 80/86 Kolpinghuis Nijmegen BV [1987] ECR 3969, paragraph 13; Impact, paragraph 100; and also, by analogy, Case C-105/03 Pupino [2005] ECR I-5285, paragraphs 44 and 47.
      (
            18
         )	See inter alia Case C-221/88 Busseni [1990] ECR I-495, paragraphs 23 to 26; Case C-97/96 Daihatsu Deutschland [1997] ECR I-6843, paragraphs 24 and 26; Case C-201/02 Wells [2004] ECR I-723, paragraph 57; and Joined Cases C-152/07 to C-154/07 Arcor and Others [2008] ECR I-5959, paragraph 35.