RB v TÜV Rheinland LGA Products GmbH and Allianz IARD S.A.
Date: 2020-06-11
31


In accordance with settled case-law, that provision is intended to apply independently only to situations governed by EU law in respect of which the Treaties lay down no specific rules on non-discrimination (judgment of 18 June 2019, Austria v Germany, C‑591/17, EU:C:2019:504, paragraph 39 and the case-law cited). The application of the first paragraph of Article 18 TFEU is accordingly subject to two cumulative conditions being satisfied.
33


Under the second condition, there must be no specific rule laid down by the Treaties prohibiting discrimination on grounds of nationality that is applicable to that situation. As the Court has stated, national measures can be examined having regard to the first paragraph of Article 18 TFEU only to the extent that they apply to situations which do not fall within the scope of specific rules on non-discrimination laid down by the FEU Treaty (see judgment of 18 June 2019, Austria v Germany, C‑591/17, EU:C:2019:504, paragraph 41).
42


Directive 85/374, as follows from its 18th recital, does not seek exhaustively to harmonise the sphere of liability for defective products beyond the matters regulated by that directive (judgment of 21 June 2017, W and Others, C‑621/15, EU:C:2017:484, paragraph 21 and the case-law cited).
46


According to the Court’s case-law, it is the exercise of one of those freedoms that brings the situation in which that freedom is exercised within the scope of the Treaties, within the meaning of the first paragraph of Article 18 TFEU. It is also necessary that there be a specific connecting factor linking the person, service or goods concerned and the alleged discrimination. Such a connection is particularly evident when the person who has suffered the alleged discrimination is a person who has moved within the European Union (see, to that effect, judgments of 2 February 1989, Cowan, 186/87, EU:C:1989:47, paragraph 20, and of 13 June 2019, TopFit and Biffi, C‑22/18, EU:C:2019:497, paragraphs 29 and 30) or where discrimination is the direct result of the national rules applicable to goods from other Member States (see, to that effect, judgment of 20 October 1993, Phil Collins and Others, C‑92/92 and C‑326/92, EU:C:1993:847, paragraphs 22, 23 and 27).
48


As regards, first, the free movement of Union citizens, the Court has held that the situation of a Union citizen who has made use of his or her freedom of movement falls within the scope of Article 18 TFEU (judgments of 13 November 2018Raugevicius, C‑247/17, EU:C:2018:898, paragraph 27, and of 13 June 2019, TopFit and Biffi, C‑22/18, EU:C:2019:497, paragraph 29).
50


Further, as regards the freedom to provide services, laid down in Article 56 TFEU, it must be recalled, first, that, as stated by the Advocate General in point 82 of his Opinion, that freedom also includes the freedom of recipients of services to travel to another Member State in order to receive a service there and that persons receiving medical treatment can be regarded as recipients of services (judgment of 31 January 1984, Luisi and Carbone, 286/82 and 26/83, EU:C:1984:35, paragraph 16). However, it is undisputed that the applicant in the main proceedings received medical treatment in Germany, that is, in her Member State of residence, and not in another Member State.
51


Second, the freedom to provide insurance services corresponds to the freedom of insurers to offer their services to buyers of insurance established in other Member States and, conversely, the freedom of persons seeking an insurance contract to contact an insurer established in another Member State (see, to that effect, judgments of 28 April 1998, Safir, C‑118/96, EU:C:1998:170, paragraphs 22, 26 and 30; of 3 October 2002, Danner, C‑136/00, EU:C:2002:558, paragraph 31; and of 26 June 2003, Skandia and Ramstedt, C‑422/01, EU:C:2003:380, paragraphs 27 and 28).
56


In that context, the dispute in the main proceedings relates not to the cross-border movement of goods in itself, but to the harm caused by the goods that have been so moved. That dispute concerns the issue whether it is possible, for a person such as the applicant in the main proceedings, to obtain, due to the harm resulting from the insertion of defective breast implants, compensation from an insurance company that entered into a contract with the manufacturer of those implants covering the risks associated with the use of those implants in metropolitan France or in the French overseas territories. It must be added that civil liability insurance taken out in those terms does not affect the marketing in another Member State of the products the risks from which that insurance is intended to cover, or their movement within the European Union. Since there is no effect on trade in goods and services within the European Union, the situation at issue in the main proceedings is not, therefore, comparable to the situation at issue in the case that gave rise to the judgment of 20 October 1993, Phil Collins and Others (C‑92/92 and C‑326/92, EU:C:1993:847, paragraphs 22 and 23).