José Maria Ambrósio Lavrador and Maria Cândida Olival Ferreira Bonifácio v Companhia de Seguros Fidelidade-Mundial SA.
Date: 2011-06-09
23. In that regard, it should be noted, initially, that the preambles to the First and Second Directives show that their aim is, first, to ensure the free movement of vehicles normally based on European Union 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 (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; and Case C‑484/09 Carvalho Ferreira Santos [2011] ECR I-0000, paragraph 24).
24. 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, and Carvalho Ferreira Santos , paragraph 27).
25. However, it should be noted that the obligation to provide insurance cover against civil liability for damage caused to third parties by motor vehicles is separate 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 European Union legislation, the latter is, essentially, governed by national law ( Carvalho Ferreira Santos , paragraph 31 and case-law cited).
26. Indeed, 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 European Union law now stands, the Member States are free to determine the rules of civil liability applicable to road accidents ( Carvalho Ferreira Santos , paragraph 32 and case-law cited). That analysis is confirmed, with regard to damages suffered by non-motorised users of the road, by the provisions of Article 1(a) of the Third Directive, reproduced in Article 12(3) of Directive 2009/103.
27. However, Member States are obliged to ensure that the civil liability arising under their domestic law is covered by insurance compatible with the provisions of the three abovementioned directives ( Mendes Ferreira and Delgado Correia Ferreira , paragraph 29; Case C-356/05 Farrell [2007] ECR I-3067, paragraph 33; and Carvalho Ferreira Santos , paragraph 34).
28. Secondly, it is apparent from the case-law that the Member States must exercise their powers in that field in compliance with European Union law and that the national provisions which govern compensation for road accidents may not deprive the First, Second and Third Directives of their effectiveness ( Ruiz Bernáldez , paragraph 19; Candolin and Others , paragraphs 27 and 28; and Farrell , paragraph 34).
29. 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 motor vehicle insurance or limited such a right in a disproportionate manner (see, to that effect, Candolin and Others , paragraph 29). It is only in exceptional circumstances that the amount of the victim’s compensation may be limited on the basis of an assessment of his particular case ( Candolin and Others , paragraph 30).
30. The Court accordingly held that Article 2(1) of the Second Directive and Article 1 of the Third Directive preclude a national rule that allows the compensation borne by the compulsory motor vehicle insurance to be refused or limited in a disproportionate manner on the basis of the passenger’s contribution to the injury or loss he has suffered ( Candolin and Others , paragraph 35).That decision was confirmed in Farrell (paragraph 35).
32. In this regard, it is apparent from the order for reference that Articles 503 and 504 of the Código Civil provide for strict liability in the case of road traffic accidents but that, under Article 505 of that code, the liability for risk set out in Article 503(1) of that code is excluded if the accident is caused by the victim. Furthermore, when the victim’s fault has contributed to the occurrence or aggravation of the injury or loss, Article 570 of the Código Civil provides that, according to the seriousness of that fault, that person is to be deprived of some or all of the compensation.
34. Unlike the respective legal contexts which led to the judgments in Candolin and Others  and in Farrell , that legislation does not have the effect, therefore, where the victim contributes to his own loss or injury, of automatically excluding or limiting disproportionately this right, in the present case that of the parents of a deceased child who collided with a motor vehicle while riding a bicycle, to compensation by means of compulsory insurance against the civil liability of the driver of the vehicle involved in the accident. Thus, it does not affect the obligation under European Union law to ensure that civil liability arising under national law is covered by insurance which complies with the provisions of the three abovementioned directives ( Carvalho Ferreira Santos , paragraphs 43 and 44).