Vítor Hugo Marques Almeida v Companhia de Seguros Fidelidade-Mundial SA and Others.
Date: 2012-10-23
26. In that regard, it should be noted that, according to the preambles to the First and Second Directives, their aim is, first, to ensure the free movement of vehicles normally based on EU territory and of persons travelling in those vehicles and, second, to guarantee that the victims of accidents caused by those vehicles receive comparable treatment irrespective of where in the European Union the accident occurred (see Case C-129/94 Ruiz Bernáldez [1996] ECR I-1829, paragraph 13; Case C-348/98 Mendes Ferreira and Delgado Correia Ferreira [2000] ECR I-6711, paragraph 24; Case C-484/09 Carvalho Ferreira Santos [2011] ECR I-1821, paragraph 24; and Case C-409/09 Ambrósio Lavrador and Olival Ferreira Bonifácio [2011] ECR I-4955, paragraph 23).
27. The First Directive, as amplified and supplemented by the Second and Third Directives, thus requires the Member States to ensure that civil liability in respect of the use of vehicles normally based in their territory is covered by insurance, and specifies, inter alia, the types of damage and the third-party victims to be covered by that insurance ( Mendes Ferreira and Delgado Correia Ferreira , paragraph 27; Carvalho Ferreira Santos , paragraph 27; and Ambrósio Lavrador and Olival Ferreira Bonifácio , paragraph 24).
28. It should however be noted that the obligation to provide insurance cover against civil liability for damage caused to third parties by motor vehicles is distinct from the extent of the compensation to be afforded to them on the basis of the civil liability of the insured person. Whereas the former is defined and guaranteed by EU legislation, the latter is, essentially, governed by national law (see Carvalho Ferreira Santos , paragraph 31 and the case-law cited, and Ambrósio Lavrador and Olival Ferreira Bonifácio , paragraph 25).
29. In that regard, the Court has already held that it is apparent from the aim of the First, Second and Third Directives, and from their wording, that they do not seek to harmonise the rules of the Member States governing civil liability and that, as EU law stands at present, the Member States are free to determine the rules of civil liability applicable to road accidents ( Carvalho Ferreira Santos , paragraph 32 and the case-law cited, and Ambrósio Lavrador and Olival Ferreira Bonifácio , paragraph 26).
30. That being so, Member States are obliged to ensure that the civil liability arising under their domestic law is covered by insurance which complies with the provisions of the three abovementioned directives ( Mendes Ferreira and Delgado Correia Ferreira , paragaph 29; Farrell , paragraph 33; Carvalho Ferreira Santos , paragraph 34; and Ambrósio Lavrador and Olival Ferreira Bonifácio , paragraph 27).
31. It is also apparent from the case-law of the Court of Justice that the Member States must exercise their powers in that field in compliance with EU law and that the national provisions which govern compensation for road accidents may not deprive the First, Second and Third Directives of their effectiveness ( Ambrósio Lavrador and Olival Ferreira Bonifácio , paragraph 28).
32. As the Court has stated, those directives would be deprived of their effectiveness if, solely on the basis of the victim’s contribution to the occurrence of his injuries, national rules, established on the basis of general and abstract criteria, either denied the victim the right to be compensated by the compulsory insurance against civil liability in respect of the use of motor vehicles or limited such a right in a disproportionate manner. It is, therefore, only in exceptional circumstances that that right may be limited on the basis of an assessment of a particular case ( Ambrósio Lavrador and Olival Ferreira Bonifácio , paragraph 29).
33. The Court has thus held that Articles 2(1) of the Second Directive and 1 of the Third Directive preclude national rules which allow the disproportionate refusal or restriction of the compensation to be made available to a passenger by means of compulsory insurance against civil liability in respect of the use of motor vehicles solely on the basis of his contribution to the occurrence of that damage ( Candolin and Others , paragraph 35, and Farrell , paragraph 35).
35. The national rules at issue in the main proceedings seek only to determine the right of the victim, and the possible extent of that right, to compensation on the basis of the civil liability of the insured person. However, they are not such as to limit any civil liability insurance cover established for the insured person.
36. Second, it is apparent from the order for reference that Articles 503 and 504 of the Civil Code provide for strict liability in the case of road traffic accidents but that, without prejudice to Article 570 of that code, the liability for risk set out in Article 503(1) of that code can be excluded, pursuant to Article 505 of the code, only if the accident is attributable to the victim or to a third party, or is the result of force majeure . Article 570(1) of the Civil Code provides that, where the injured person’s fault has contributed to the occurrence or aggravation of the injury or loss, according to the assessment made by the competent court and the seriousness of the fault of each party and the consequences thereof, that person may be deprived of some or all of the compensation (see Ambrósio Lavrador and Olival Ferreira Bonifácio , paragraph 32).
37. In contrast to the legal contexts which led respectively to the judgments in Candolin and Others and in Farrell , those national rules do not have the effect, therefore, where the victim, who in the present case was a passenger in a vehicle involved in such an accident, contributes to his own loss or injury, of automatically excluding or limiting disproportionately the right of that victim to compensation by means of compulsory insurance against the civil liability of the driver of the vehicle involved in the accident (see Carvalho Ferreira Santos , paragraph 43, and Ambrósio Lavrador and Olival Ferreira Bonifácio , paragraph 34).
38. Having regard to the foregoing considerations, it must be held that the national legislation at issue in the main proceedings does not affect the guarantee, provided by the law of the European Union, that civil liability in respect of the use of motor vehicles, determined according to the applicable national law, will be covered by insurance in accordance with the First, Second and Third Directives (see Carvalho Ferreira Santos , paragraph 44, and Ambrósio Lavrador and Olival Ferreira Bonifácio , paragraph 34).