Churchill Insurance Company Limited v Benjamin Wilkinson and Tracy Evans v Equity Claims Limited.
Date: 2011-12-01
22. However, according to settled case-law, in the procedure laid down by Article 267 TFEU, the functions of the Court of Justice and those of the referring court are clearly separate, and it falls exclusively to the latter to interpret national legislation and assess its effects (see Case 52/76 Benedetti  [1977] ECR 163, paragraph 25; Case C‑397/96 Kordel and Others  [1999] ECR I‑5959, paragraph 25; and Case C‑500/06 Corporación Dermoestética [2008] ECR I‑5785, paragraph 21).
27. In that regard, it must be borne in mind that EU rules relating to civil liability in respect of the use of motor vehicles are designed to ensure the free movement of vehicles normally based on EU territory and of persons travelling in those vehicles and to guarantee that the victims of accidents caused by those vehicles receive comparable treatment irrespective of where in the EU the accident has occurred (see, inter alia, Case C‑129/94 Ruiz Bernáldez  [1996] ECR I‑1829, paragraph 13, and Case C‑537/03 Candolin and Others  [2005] ECR I‑5745, paragraph 17). They also seek, as set out in the fifth recital in the preamble to the Third Directive, to protect that particularly vulnerable category of potential victims who are motor vehicle passengers by filling the gaps in the compulsory insurance cover of those passengers in certain Member States (Case C‑356/05 Farrell  [2007] ECR I‑3067, paragraph 24).
28. To those ends, Article 3(1) of the First Directive, as amplified and supplemented by the Second and Third Directives, requires the Member States to ensure that civil liability in respect of the use of motor vehicles normally based in their territory is covered by insurance, and specifies, inter alia, the types of damage and the third parties who have been victims of an accident to be covered by that insurance (see, to that effect, Case C‑348/98 Mendes Ferreira and Delgado Correia Ferreira  [2000] ECR I‑6711, paragraphs 25 to 27, and Case C‑484/09 Carvalho Ferreira Santos  [2011] ECR I‑0000, paragraphs 25 to 27).
29. In that last regard, the Court has already held that the aim of Article 3(1) of the First Directive, Article 2(1) of the Second Directive and Article 1 of the Third Directive is to ensure that compulsory motor vehicle insurance against civil liability in respect of the use of motor vehicles allows all passengers who are victims of an accident caused by a motor vehicle to be compensated for the injury or loss they have suffered (see, to that effect, Candolin and Others , paragraph 27). It also considered that, by providing that insurance against civil liability in respect of the use of motor vehicles covers liability for personal injuries to all passengers other than the driver, Article 1 of the Third Directive only lays down a distinction between the driver and the other passengers and unquestionably grants insurance cover to all passengers ( Candolin and Others , paragraph 32, and Farrell , paragraph 23).
30. In view of this, the Court held that the aim of protecting victims pursued by the First, Second and Third Directives, as has been pointed out in paragraph 27 of this judgment, requires the legal position of the owner of the vehicle, present in the vehicle at the time of the accident as a passenger, to be the same as that of any other passenger who is a victim of the accident ( Candolin and Others , paragraph 33). Likewise, it held that that aim also precludes national rules from restricting unduly the concept of passenger covered by insurance against civil liability in respect of the use of motor vehicles, by excluding from that concept persons who were on board a part of a vehicle which is not designed for their carriage and equipped for that purpose (see, to that effect, Farrell , paragraphs 28 to 30).
31. The only distinction permitted by EU rules relating to civil liability in respect of the use of motor vehicles thus being, as pointed out in paragraph 29 of this judgment and as the Advocate General has noted in point 28 of his Opinion, that between the driver and passenger, the same aim of protecting victims also requires the legal position of the person who, at the time of the accident, was a passenger in the vehicle in respect of which he was insured to drive, to be the same as that of any other passenger who is a victim of the accident.
32. It follows that the fact that a person was insured to drive the vehicle which caused the accident does not mean that that person should be excluded from the concept of third parties who have been victims of an accident within the meaning of Article 2(1) of the Second Directive, in so far as he was a passenger in that vehicle and not the driver.
33. With regard to the rights granted to those third parties who have been victims of an accident, it must be borne in mind that the Court has held that Article 3(1) of the First Directive precludes an insurer from relying on statutory provisions or contractual clauses in order to refuse to compensate third parties who have been victims of an accident caused by the insured vehicle (see, to that effect, Ruiz Bernáldez , paragraph 20, Candolin and Others , paragraph 18, and Carvalho Ferreira Santos , paragraph 29).
34. The Court has also held that the first subparagraph of Article 2(1) of the Second Directive simply repeats that obligation, with respect to provisions or clauses in an insurance policy referred to in that article excluding from the cover provided by insurance against civil liability in respect of the use of motor vehicles, damage or injury suffered by third parties who have been victims of an accident caused by the use or driving of an insured vehicle by persons not authorised to drive the vehicle, persons not holding a driving licence, or persons in breach of the statutory technical requirements concerning the condition and safety of the vehicle ( Ruiz Bernáldez , paragraph 21; Candolin and Others , paragraph 19; and Carvalho Ferreira Santos , paragraph 30).
35. It is true that by way of derogation from that obligation, the second subparagraph of Article 2(1) provides that certain persons may be excluded from compensation by the insurer, having regard to the situation they have themselves brought about, that is to say, persons who voluntarily entered the vehicle which caused the damage or injury, when the insurer can prove that they knew the vehicle was stolen ( Ruiz Bernáldez , paragraph 21, Candolin and Others , paragraph 20). However, and as the Court has already held, derogations from the first subparagraph of Article 2(1) of the Second Directive may only be made in that single, specific case (see, to that effect, Candolin and Others , paragraph 23).
36. It follows from the foregoing that Article 1, first subparagraph, of the Third Directive and Article 2(1) of the Second Directive must be interpreted as precluding national rules the effect of which is to omit automatically the requirement that the insurer should compensate a passenger, the victim of a road traffic accident, on the ground that that passenger was insured to drive the vehicle which caused the accident but that the driver was not.
37. In that context, the referring court also asks the Court whether permission to drive given by the insured to a non-insured driver constitutes, in circumstances such as those in the main proceedings, ‘express or implied authorisation’ within the meaning of the first indent of Article 2(1) of the Second Directive. As the Advocate General has stressed in point 42 of his Opinion, the referring court asks this question in order to establish whether the statutory provisions and contractual clauses excluding insurance cover when the driver was a person who had not received express or implied authorisation from the insurer may be invoked against the victim.
38. However, that argument cannot be accepted. Even if the terms ‘express or implied authorisation’ did refer only to permission given by the insured, it cannot, in any event, mean that a clause excluding insurance cover when the driver was a person who had not received authorisation from the insurer would be valid and enforceable against a third party who has been a victim of an accident. The only situation in which a third party who has been a victim of an accident may be excluded from insurance cover is that specified in the second subparagraph of Article 2(1) of the Second Directive. It is not disputed that, in the present case, that situation is not in issue.
39. Nevertheless, the referring court also asks whether the fact that, in accordance with the third subparagraph of Article 1(4) of the Second Directive, Member States may exclude the payment of compensation by a national body in respect of persons who voluntarily entered the vehicle which caused the damage or injury, when the body can prove that they knew it was uninsured, can have a bearing on the answer to question 1.
40. In that regard, it is first necessary to point out that the situation in which the vehicle that caused the damage was driven by a person not insured to do so, while a driver was, moreover, insured to drive that vehicle, and the situation specified in the third subparagraph of Article 1(4) of the Second Directive in which the vehicle which caused the accident was not covered by any insurance policy, are situations neither similar nor comparable. The fact that a vehicle is driven by a person not named in the relevant insurance policy cannot, having regard, in particular, to the aim of protecting victims of road traffic accidents pursued by the First, Second and Third Directives, support the view that that vehicle was not insured for the purpose of that provision.
41. Second, as noted by the Commission, the payment of compensation by a national body is considered to be a measure of last resort, provided for only in cases in which the vehicle that caused the injury or damage is uninsured or unidentified or has not satisfied the insurance requirements referred to in Article 3(1) of the First Directive.
42. This explains why, despite the general aim of protecting victims of EU rules relating to civil liability in respect of the use of motor vehicles, the EU legislature allows Member States to exclude the payment of compensation by that national body in certain limited cases, and, in particular, in respect of persons who voluntarily entered the vehicle which caused the damage or injury when the body can prove that they knew that neither the driver nor the vehicle was insured.
43. Consequently, the fact that, in accordance with the third subparagraph of Article 1(4) of the Second Directive, Member States may exclude the payment of compensation by a national body in respect of persons who voluntarily entered the vehicle which caused the damage or injury when the body can prove that they knew that neither the driver nor the vehicle was insured, has, in the present case, no bearing on the interpretation of Article 1, first subparagraph, of the Third Directive and Article 2(1) of the Second Directive.
44. In the light of the foregoing, the answer to the first question is that Article 1, first subparagraph, of the Third Directive and Article 2(1) of the Second Directive must be interpreted as precluding national rules whose effect is to omit automatically the requirement that the insurer should compensate a passenger who is a victim of a road traffic accident when that accident was caused by a driver not insured under the insurance policy and when the victim, who was a passenger in the vehicle at the time of the accident, was insured to drive the vehicle himself and who had given permission to the driver to drive it.
The second question
48. That does not, however, mean that the Member States may not take account of every factor within the ambit of their rules relating to civil liability provided, none the less, that they exercise their powers in that field in compliance with EU law and, in particular, with Article 3(1) of the First Directive, Article 2(1) of the Second Directive and Article 1 of the Third Directive and that those national rules do not deprive those directives of their effectiveness ( Ruiz Bernáldez , paragraph 19; Candolin and Others , paragraphs 27 and 28; Farrell , paragraph 34; Carvalho Ferreira Santos , paragraphs 35 and 36; and Case C‑409/09 Ambrósio Lavrador and Olival Ferreira Bonifácio  [2011] ECR I‑0000, paragraph 28).
49. Accordingly, national rules, formulated in terms of general and abstract criteria, may not refuse or restrict to a disproportionate extent the compensation to be made available to a passenger by compulsory insurance against civil liability in respect of the use of motor vehicles solely on the basis of his contribution to the occurrence of the loss which arises. It is only in exceptional circumstances that the amount of compensation may be limited on the basis of an assessment of that particular case ( Candolin and Others , paragraphs 29, 30 and 35; Farrell , paragraph 35; Carvalho Ferreira Santos , paragraph 38; and Ambrósio Lavrador and Olival Ferreira Bonifácio , paragraph 29).