C-313/82

JUDGMENT OF 15. 3. 1984 — CASE 313/82

In Case 313 / 82

REFERENCE to the Court under Article 177 of the EEC Treaty by the Burgerlijke Rechtbank van Eerste Aanleg [Civil Court of First Instance ], Hasselt , for a preliminary ruling in the action pending before that court between

NV TIEL-UTRECHT SCHADEVERZEKERING, having its registered office at Utrecht ,

and

GEMEENSCHAPPELIJK MOTORWAARBORGFONDS [Joint Motor Guarantee Fund ], having its headquarters at Brussels,

Facts and Issues

I — Facts and written procedure in the Netherlands sustained injuries in a road accident which occurred at Hamont-Achel in Belgium on 20 August 1. Mrs Kenis, née van Horne, a 1977. Under a health-care insurance Netherlands national residing in Budel policy by which she was covered she

TIEL-UTRECHT SCHADEVERZEKERING / FCGA

(a) where the institution responsible for 3. Since the accident in question was benefits is, by virtue of the legislation caused by an unidentified motor vehicle, which it administers, subrogated to one of the conditions for involvement of the rights which the recipient has

JUDGMENT OF 15. 3. 1984 — CASE 313/82

TIEL-UTRECHT SCHADEVERZEKERING / FCGA

6. The judgment making the reference was registered at the Court on 10 As framed, the question seeks to December 1982. establish whether the plaintiff meets the conditions, laid down by the Belgian In accordance with Article 20 of the Law, concerning capacity to seek Protocol on the Statute of the Court recovery from the Fund. As a specific of. Justice written observations were right or recovery is given by that Law to submitted by the Gemeenschappelijk insurance institutions, the question to be Motorwaarborgfonds, the defendant in resolved is whether the plaintiff must be the main proceedings, represented by considered "an insurance institution" Ludovic De Gryse, Advocate with right within the meaning of that Law. of audience before the Hof van Cassatie Although the question mentions Regu of Belgium, and by the Commission of lation No 1408/71,'it does so only in the European Communities, represented order to establish whether an institution by Manfred Beschel, a member of its or authority which may be considered an Legal Department, acting as Agent. "institution" within the meaning of Upon hearing the report of the Judge- Article 93 of that regulation must also Rapporteur and the views of the automatically be regarded as an Advocate General the Court decided to "insurance institution" within the mean open the oral procedure without any ing of Article 70 of the Belgian Law of preparatory inquiry.

regards the question whether the mitted to the Court institution liable for payment of benefit may be subrogated to the rights of the As a preliminary point the Gemeen- accident victim in the Member Sfiite in schappelijk Motorwaarborgfonds observes which the injury occurred or whether it that, as far as the first question is is entitled to exercise a "direct right", concerned, the Court has jurisdiction Article 93 of Regulation No 1408/71, under Article 177 (b) of the EEC Treaty just like Article 52 of the previous regu-

As regards the second question the Fund points out that Article 93 of Regulation No 1408/71 is open to different interpret­ ations since, whilst the heading of the article mentions the rights of institutions The provisions governing the rights of against "liable" third parties, the article action of road accident victims against a itself refers to rights against a third party joint guarantee fund in cases where the "bound to compensate for the injury". person responsible for the accident is Moreover, since the rules goyerning the unknown entail an important derogation Fund's intervention form part of the from the normal rules of non-contractual body of legislation governing non-con­ liability by making that institution liable tractual liability, which continues to be to pay compensation instead of the governed by national law alone, the unknown person but they are also part question may be resolved only by of the body of rules governing that reference to that law. liability which Article 93 of Regulation No 1408/71 has left intact. Community law does not therefore derogate in any way from the rules of national law — in this instance Belgian law •— which define the circumstances in which the guarantee fund, instead of the person who caused the injury, becomes liable to pay compensation. One of those rules of The Fund therefore considers that, if the national law is Article 70 of the Belgian Court of Justice has jurisdiction to Law of 9 August 1963 which gives a answer the questions submitted by the right of recovery against the Fund only national court, it should conclude that to an "insurance institution". What no inferences can be drawn from • constitutes an insurance institution can Community law as regards the question moreover only be ascertained from a whether a "health-care" insurer in one reading of Article 2 (d) of the same Law Member State which has paid com­ which mentions "authorized national pensation for injury caused in a road federations" and the Relief Fund for accident which occurred in another Sickness and Invalidity Insurance. Since, Member State may exercise in that according to Article 3 of that Law, auth­ Member State a right of recovery against orized national federations are only a guarantee fund which, by virtue of the those which are authorized pursuant to legislation of that State, takes the place the Royal Decree of 22 September 1955, of an unknown third party responsible only insurance institutions authorized in for the accident.

In case the Court should not accept its preliminary remarks the Commission As regards the field of application ratione observes in the alternative that both the personae, it is not explained at all in the national court and the parties to the judgment making the reference to the main action wrongly assume that the Court whether the victim of the accident plaintiff's right of action for recovery belonged at the material time to the should be considered in the light of category of persons to which Regulation Belgian law and possibly with reference No 1408/71 applies, that is to say to Article 93 of Regulation No 1408/71. workers and members of their families. It is accepted in Belgian case-law and academic writing that the insurer's legal subrogation to the rights of the victim of an unlawful act is a matter governed not by the law applicable to that act but by As regards the field of application of the the law governing the payment giving regulation ratione materiae, it must be rise to subrogation. It follows that the emphasized that, according to Article 4 circumstances in which subrogation (1) thereof, it applies to all "legislation" arises in Belgium are governed not by concerning social security including inter the lex loci commissi delicti, which applies alia sickness benefits. Article 93 mentions to the unlawful act and the consequences persons who receive benefits "under the thereof, but by the law governing the legislation of one Member State". status of the subrogated party by virtue According to Article 1 (j) of Regulation of which the payment is made. It is clear

from Article 93 of Regulation No law applicable to the subrogation of 1408/71 that the same principle applies rights on the one hand and the question for implementation of the Community- of the law applicable to the exercise of social security regulations. The national the subrogated or direct rights on the court should therefore have considered other. The existence of subrogated or whether, by reimbursing the accident direct rights is determined by the victim's medical expenses, the insurer legislation applicable to the institution was subrogated under the law governing concerned, whereas the substance of the the insurance policy, which was claim is determined by the rules of Netherlands law, to the rights of the national law defining how and within insured or whether the payment of the what limits the victim's right to expenses gave it a direct right of action. compensation arises. Consequently, if the Court considers that the issue falls within the field of application of Regulation No 1408/71, the question on the interpretation of It is therefore the law applicable by Article 93 does then become relevant. virtue of the lex fori to the victim's right of action which will determine whether, in exercising the subrogated or direct rights which it has under its own On the basis of those preliminary national law, the insurer may claim only considerations the Commission observes against the third party liable or also with regard to the first question that, against third parties which are not liable according to Article 1 (n) of Regulation but which are nevertheless bound by law No 1408/71, the term "institution" to compensate for the injury. means, in respect of each Member State, "the body or authority responsible for administering all or part of the In the present case, therefore, the legislation". The "insurance institutions" plaintiff in the main proceedings could referred to in the final paragraph of claim against the Fund only if under Article 70 and Article 2 of the Belgian Netherlands law it was vested with a Law of 9 August 1963 fall within the subrogated or direct right of action and definition of an "institution" contained provided that the lex loci commissi delicti, in the Community regulation. Only in which applies in Belgium to the victim's so far as the plaintiff in the main claim, actually afforded the insured proceedings acts as the institution person a right of action against the Fund. responsible for administering all or part of Netherlands social security legislation may it be considered to be an "institution" for the purposes of Regu­ In conclusion the Commission suggests lation No 1408/71. that the questions submitted for a pre­ liminary ruling should be answered as follows :

administering all or part of the Community law arises in this case. The legislation. Only in so far as the fact that Belgian law restricts the plaintiff in the main proceedings acts subrogated right of action to Belgian as the institution responsible for institutions can be taken into account administering all or part of the social only in so far as the lex fori actually security legislation in force may it be provides that Belgian law applies to the considered to be an "institution" victim's right of action, which must be within the meaning of Regulation No determined by the national court. Even 1408/71; in such a case that fact is immaterial inasmuch as the law thus referred to does not govern the question of the 2. For the purposes of Article 93 of capacity conferred upon the institution Regulation No 1408/71 the law concerned to exercise the subrogated or applicable by virtue of the lex fori to direct right of action. The restriction of the victim's claim determines whether the subrogated or direct right of action in exercising subrogated or direct to Belgian institutions is counteracted by rights the insurer may claim only the provisions of Article 93 of Regu­ against the third party liable or lation No 1408/71 which makes no whether it may also exercise its right provision regarding the recognition of of action against third parties which any subrogated or direct right of action. are not liable but which are never­ theless bound by specific statutoiy provisions to compensate for the injury. In reply to another question put by the Court, the insurance company NV Tiel- Utrecht Schadeverzekering confirmed that the basis of Mrs Kenis's insurance is purely contractual. It also stated that Mrs Kenis is not a worker or a member of a worker's family within the meaning Ill — Answers of the parties to of Regulation No 1408/71. the questions put by the Court

3 As a result of legal proceedings it was established that the accident in question had been caused by an unknown third party. Tiel-Utrecht, which had paid Mrs Kenis BFR 94 069 as reimbursement of medical expenses under a health-care insurance policy held by her, brought an action in Belgium for the recovery of that amount against the Fund, which under Belgian law is responsible for paying compensation for injuries and damages caused by unidentified, stolen or uninsured motor vehicles.

4 The Fund argued before the Belgian court that it was not liable to reimburse the sum paid to Mrs Kenis by Tiel-Utrecht because the Belgian Law of 9 August 1963 introducing a compulsory sickness and invalidity insurance scheme, in particular Article 70 thereof, intended that only the Belgian institutions responsible for applying the provisions on compulsory insurance were to have a right of recovery against the Fund.

s Tiel-Utrecht, relying on Article 93 of Regulation No 1408/71, submitted that it should be considered an "institution" within the meaning of that regu­ lation and therefore treated in the same way as Belgian insurance institutions.

TIEL-UTRECHT SCHADEVERZEKERING / FCGA

6 The Fund submitted that Regulation No 1408/71 was inapplicable in this case, on the ground that the relationship between Tiel-Utrecht and die insured person was of a contractual nature, and argued that the Belgian legislation could not be applied "by analogy" to a legal entity incorporated under Netherlands law.

7 In those circumstances the Burgerlijke Rechtbank van Eerste Aanleg Hasselt, referred the following questions to the Court for a preliminary ruling: '

JUDGMENT OF 15. 3. 1984 — CASE 313/82

costs which the insurance institutions incur as a result of road accidents caused by unidentified, stolen or uninsured vehicles. That Law provides that in such cases "the insurance institution shall have a specific right pf recovery against the Gemeenschapplijk Motorwaarborgfonds referred to in Article 15 of the Law of 1 July 1956". Article 2 (d) of the same Law defines "insurance institutions" as the Relief Fund for Sickness and Invalidity Insurance [Hulpkas voor Ziekte-en Invaliditeitsverzekering] and the "authorized national federations" [Landsbonden], that is to say Belgian institutions only.

io As regards Regulation No 1408/71, Article 93, which is headed "Rights of institutions responsible for benefits against liable third parties", provides that:

"If a person receives benefits under the legislation of one Member State in respect of an injury resulting from an occurrence in the territory of another State, any rights of the institution responsible for benefits against a third party bound to compensate for the injury shall be governed by the following rules :

(a) where the institution responsible for benefits is, by virtue of the legislation;which, it administers, subrogated to the rights which the recipient has against the third party, such subrogation shall be recognized by each Member State;

(b) where the said institution has direct rights against the third party, such rights shall be recognized by each Member State."

H According to Article 1 (n) of Regulation No 1408/71, the term "institution" means, in respect of each Member State, "the body or authority responsible for administering all or part of the legislation". Article 4 (1) of the same regulation restricts the term "legislation" by stating under the heading "Matters covered" that the regulation is to apply to all legislation concerning the branches of social security listed in paragraphs (1) and (2). In this context "legislation" is defined by Article 1 (j), which provides that " 'legislation' means in respect of each Member State statutes, regulations and other provisions and all other implementing measures, present or future, relating to the branches and schemes of social security covered by Article 4 (1) and (2)", l but excludes "existing or future industrial agreements ".

is The answer to the first question must therefore be that the term "institution" in Article 93 of Regulation No 1408/71 means, in respect of each Member State, the body or authority responsible for administering all or part of the Member State's legislation relating to the branches or schemes of social security mentioned in that regulation.

i6 It is clear from the considerations set out above that Regulation No 1408/71 does not apply to "industrial agreements". Yet Tiel-Utrecht has stated, in answer to a question put to it by the Court, that the basis of the insurance under which it made payments to Mrs Kenis was purely contractual. It must therefore be concluded that the relationship between Mrs Kenis and Tiel- Utrecht does not, by reason of its nature, fall within the scope of Regulation No 1408/71.

THE COURT (First Chamber),

in answer to the question submitted to it by the Burgerlijke Rechtbank van Eerste Aanleg, Hasselt, by judgment of 25 November 1982, hereby rules:

The term "institution" in Article 93 of Regulation (EEC) No 1408/71 means, in respect of each Member State, the body or authority responsible for administering all or part of the Member State's legislation relating to the branches or schemes of social security mentioned in that regulation.

Koopmans O'Keeffe Bosco

Delivered in open court in Luxembourg on 15 March 1984.

For the Registrar