Elaine Farrell v Alan Whitty, Minister for the Environment, Ireland, Attorney General and Motor Insurers Bureau of Ireland (MIBI).
Date: 2007-04-19
23. Since that article clearly extends insurance cover to all passengers, Ireland’s argument can be accepted only in so far as persons carried in a vehicle that was not designed for their transport could not be classified as ‘passengers’.
24. It would be contrary to the objectives of the Community legislation to exclude from the concept of ‘passenger’, and thus from insurance cover, injured parties seated in a vehicle which was not designed for their carriage or equipped for that purpose. According to the fourth and fifth recitals in the preamble to the Third Directive, the objective of that legislation includes the filling of gaps in the compulsory insurance cover of motor vehicle passengers in certain Member States and the protection of that particularly vulnerable category of potential victims, coupled with the guaranteeing of comparable treatment to motor vehicle accident victims irrespective of where in the Community accidents occur.
28. However, the Community legislature did not provide any derogation with respect to a separate category of persons who may be the victims of a road traffic accident, namely those who were on board a part of a vehicle which is not designed for their carriage and equipped for that purpose. That being so, those persons cannot be excluded from the concept of ‘passenger’ and, accordingly, from the insurance cover which the Community legislation guarantees.  +++
29. Given that, first, the right to derogate from the obligation to protect accident victims is defined and circumscribed by Community law and, secondly, the realisation of the objectives referred to above requires a uniform approach to the insurance cover in respect of passengers at Community level, the Member States are not entitled to introduce additional restrictions to the level of compulsory insurance cover to be accorded to passengers.
30. Accordingly, it is not permissible for national legislation to restrict the concept of ‘passenger’ and thereby to limit the insurance cover in respect of persons entitled, in accordance with the First, Second and Third Directives, to compensation for injuries caused by motor vehicles.
31. It should be added that the restrictive approach taken by the national legislature also cannot be justified by the joint statement of the Council and the Commission referred to in paragraph 20 of this judgment. It is settled case-law that, where a statement recorded in Council minutes is not referred to in the wording of a provision of secondary legislation, it cannot be used for the purpose of interpreting that provision (Case C‑292/89 Antonissen [1991] ECR I‑745, paragraph 18; Case C‑375/98 Epson Europe [2000] ECR I‑4243, paragraph 26; and Case C-402/03 Skov and Bilka [2006] ECR I-199, paragraph 42).
32. It should also be pointed out that the obligation to provide insurance cover for passengers is separate from the extent of the compensation to be made available to them in the event of their becoming victims of a road traffic accident. Whereas the former is guaranteed and defined by Community legislation, the latter is essentially governed by national law.
33. In that regard, the Court has already held that the First, Second and Third Directives do not seek to harmonise the rules of the Member States governing civil liability and that, as Community law stands at present, the Member States are free to determine the rules of civil liability applicable to road traffic accidents. However, the Member States must ensure that the civil liability arising under their domestic law is covered by insurance which complies with the provisions of the three directives in question (Case C-348/98 Mendes Ferreira and Delgado Correia Ferreira [2000] ECR I-6711, paragraphs 23 and 29, and Case C-537/03 Candolin and Others [2005] ECR I-5745, paragraph 24).
34. It is also clear from that case-law that the Member States must exercise their powers in this field in compliance with Community law and, in particular, with Article 1 of the Third Directive, and that national provisions which govern the payment of compensation for personal injuries resulting from road traffic accidents cannot deprive that article of its effectiveness (see, to that effect, Case C-129/94 Ruiz Bernáldez  [1996] ECR I-1829, paragraph 19, and Candolin and Others , paragraphs 27 and 28).
35. Accordingly, national rules, formulated in terms of general and abstract criteria, cannot refuse or restrict to a disproportionate extent the compensation to be made available to a passenger solely on the basis of his contribution to the occurrence of the injuries which arise. It is only in exceptional circumstances that, on the basis of an individual assessment and in compliance with Community law, the amount of such compensation may be limited (see, to that effect, Candolin and Others , paragraphs 29, 30 and 35).
36. In the light of those considerations, the answer to Question 1 should be that Article 1 of the Third Directive is to be interpreted as precluding national legislation whereby compulsory motor vehicle liability insurance does not cover liability in respect of personal injuries to persons travelling in a part of a motor vehicle which has not been designed and constructed with seating accommodation for passengers.
Question 2
37. As regards Question 2, which asks whether individuals may rely directly upon Article 1 of the Third Directive before the national courts, it should be pointed out that it has consistently been held that a provision in a directive has direct effect if it appears, as far as its subject-matter is concerned, to be unconditional and sufficiently precise (Case 8/81 Becker [1982] ECR 53; Joined Cases C-253/96 to C-258/96 Kampelmann and Others [1997] ECR I-6907, paragraph 37; and Case C-292/02 Meiland Azewijn  [2004] ECR I-7905, paragraph 57).
40. A directive cannot be relied on against individuals, whereas it may be relied on as against a State, regardless of the capacity in which the latter is acting, that is to say, whether as employer or as public authority.  The entities against which the provisions of a directive that are capable of having direct effect may be relied upon include a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals (Case C-188/89 Foster and Others  [1990] ECR I-3313, paragraph 20; Case C‑343/98 Collino and Chiappero [2000] ECR I-6659, paragraph 23; and Case C‑157/02 Rieser Internationale Transporte  [2004] ECR I-1477, paragraph 24).
42. Should the national court decide that the directive cannot be relied upon against the MIBI, it will be bound, when applying domestic law and, in particular, legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, to interpret national law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by it (Case C-408/01 Adidas-Salomon and Adidas Benelux [2003] ECR I‑12537, paragraph 21, and Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I‑8835, paragraph 113).
43. In any event, the liability of the Member State to make good damage caused by a failure to transpose a directive, within the meaning of the judgment in Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357, may arise.
44. The answer to Question 2 should therefore be that Article 1 of the Third Directive satisfies all the conditions necessary for it to produce direct effect and accordingly confers rights upon which individuals may rely directly before the national courts. However, it is for the national court to determine whether that provision may be relied upon against a body such as the MIBI.
Costs