C-316/93

VANEETVELD

OPINION OF ADVOCATE GENERAL JACOBS delivered on 27 January 1994

My Lords, Belgian legislation in force at the time of the accident permitted the exclusion of the spouse of the insured person.

3. Mrs Vaneerveld has brought proceedings before the Tribunal de Commerce of Huy 1. On 2 May 1988 Mrs Nicole Vaneerveld against SA Le Foyer, which by a counter­ was injured in a traffic accident; she was a claim seeks recovery from her of the sums it passenger in a car driven by her husband Mr had already paid. SA Le Foyer has also Jean Dubois. brought proceedings in the same court against the FMSS for recovery of sums paid.

6. It is certainly in general helpful if an order for reference sets out, however succinctly, 3. In particular, were those rights created the relevant facts, so that the question or with effect from the date when the questions referred can be understood in their directive entered into force or with context. Where that is not done, the Court effect from 31 December 1987, the date may, it is true, be able to examine the ques­ by which Member States were to amend tions in their context on the basis of the their national provisions, or with effect national court's case-file and in the light of from 31 December 1988 in accordance the parties' observations; and this it not with Article 5 (2) of that directive?' infrequently does. But Member States and Community institutions, which have to sub­ mit any written observations concurrently with the parties, are put at a disadvantage, since they may be unable to discover, and so unable to address, the true issues raised by the case. The Court, in turn, may be deprived of the benefit of their observations.

cases where the national court provides far provide answers useful to the national court, more information than is needed. Sometimes and the practice of the Court has been to do what is sent to the Court is a lengthy judg­ so, rather than to refuse to answer the ques­ ment, not all of it relevant; such a judgment tions. From the outset the Court has taken may obscure, rather than clarify the issues. the view that the Article 177 procedure is Sometimes an order for reference is accom­ intended to provide for a form of judicial panied by schedules or annexes, and it is not cooperation in which formalism should be clear which of these, if any, are relevant. avoided. 2 Certain recent cases, notably 4 5 Such practices can cause difficulties because Meilicke, 3 Telemarsicabruzzo, Bancbero 6 it is uncertain which documents should be and Monin, in which the Court did not sent to the Member States and to the institu­ answer the questions referred, do not in my tions for them to be able to submit their view constitute a departure from that funda­ observations. Moreover, all orders for refer­ mental approach. In the Monin case, referred ence have to be translated immediately they to by the French Government, the Court are received at the Court into all the other considered that further information was nec­ official Community languages, currently nine essary in order to provide answers which in all. Delays and much unnecessary work would be useful to the national court. (The can be occasioned in this way. same occurred in Banchero, where the national court has since made a second refer­ 7 ence. ) The usefulness of the answer seems to me to be an important criterion, and in the present case, as will be seen, a useful answer can be given. Moreover, in the Monin case the questions referred were extremely general and wide-ranging, so that it was par­ ticularly difficult to identify their possible relevance to the national proceedings. In addition, the Court pointed out in Monin, as it did in Telemarsicabruzzo and Banchero, 8. Although these difficulties are excep­ that the need for the national court to define tional, it may be worthwhile to recall that the factual and legal context of the questions what is most helpful is for the national court was particularly important in certain fields, to set out succinctly the context in which the questions have arisen, in particular any rele­ vant facts which have been established and any relevant provisions of national law.

10. Moreover, in the present case, the facts as they emerge from the case-file and from the written observations are clear, the issue is a straightforward one, and there can be no doubt that the answer to the questions referred will be helpful to the national court. 13. The Second Council Directive sought to In this case, therefore, it would not be ensure that the members of the family of the appropriate either to decline to answer the insured person, driver or any other person questions referred, as in Meilicke and liable should be afforded protection compa­ Telemarsicabruzzo, or to reject the reference rable to that of other third parties, in any as inadmissible, as in Banchero and Monin. It event in respect of their personal injuries: see does not follow, as will become apparent, the ninth recital of the preamble. Article 3 that all the questions referred in the present accordingly provides as follows: case should necessarily be answered.

11. Accordingly I turn to consider the ques­ tions referred. 'The members of the family of the insured person, driver or any other person who is liable under civil law in the event of an acci­ dent, and whose liability is covered by the insurance referred to in Article 1 (1) shall not

12. Article 3 (1) of the first directive on the 8 — OJ 1972 L 103, p. 1. matter, Council Directive 72/166/EEC of 9 — OJ 1984 L 8, p. 17.

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VANEETVELD

be excluded from insurance in respect of previous legislation, the Law of 1 their personal injuries by virtue of that rela­ July 1956,11which permitted the spouse and tionship.' certain relatives of the driver and the insured person to be excluded from the scope of the insurance.

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OPINION OF MR JACOBS — CASE C-316/93

that, for example, in the absence of imple­ proceedings. In case it should be thought mentation by the end of the prescribed that that course should be followed here, I period, an insurance company might be held will consider how the question should be liable in the national courts. That question is approached if an answer were considered raised, although not explicitly, by the order necessary. for reference, but the answer will in my view not assist the national court. Since in the cir­ cumstances of this case the directive cannot have direct effect at all, it plainly cannot have any horizontal direct effect. So, although the issue is raised by the national court's ques­ tions, I do not think it would be appropriate for the Court to deal with it. Again, the con­ cern of the Article 177 system is to provide 18. Both the Commission and SA Le Foyer, answers which will be useful to the national in their respective written observations, take court. Just as this may sometimes require the view that, if it were necessary to consider answering a question which has not been the question of horizontal direct effect, it 13 directly raised by the national court, so it would be a sufficient answer to refer to the may sometimes justify not answering a ques­ past case-law of the Court holding that tion which has been raised. That may be so directives can have direct effect only against especially where, as in the present case, the the State or an emanation of the State ('ver­ question raises issues of great importance for tical' direct effect). 15 I do not agree. It is the Community legal order. It might seem well-known that that case-law has given rise disproportionate for the Court to address to anomalies, and in another case pending those issues in a case where the question before the Court, namely Faccini Dori, 16 the does not need to be decided. Court has been expressly invited to re-examine the matter. I will examine the issue relatively briefly, bearing in mind that it has been much discussed by commentators and has been fully debated in Faccini Dori.

I) that the Court finally took a position on exclude the possibility of derived obligations the horizontal direct effect of directives, arising for persons other than Member holding that 'a directive may not of itself States, it may be noted that, on the basis of impose obligations on an individual and ... a such an argument from the text, it would provision of a directive may not be relied have been wholly impossible to maintain 17 upon as such against such a person'. There that Article 119 of the Treaty, for example, however the Court indicated that Miss Mar­ imposed obligations on private employers as 18 shall could rely on the directive in question the Court had held as long ago as 1976. against the defendant, the Southampton and Moreover, if a directive can impose obliga­ South-West Hampshire Area Health Author­ tions only on Member States, it is by no ity (Teaching), which could be regarded as an means easy to justify imposing obligations organ of the State, and that it was immaterial on a body such as the Southampton and whether that body was acting as employer or South-West Hampshire Area Health Author­ as public authority. Curiously, therefore, the ity (Teaching). The well-known attempt at a Court decided the issue in a case in which it rationale for assigning direct effect to a direc­ was not necessary to do so: the Court could tive as against a Member State, namely that a simply have found that the defendant was an Member State ought not to be allowed to organ of the State, leaving open the question rely upon its own failure to implement a whether directives could ever be invoked directive, is singularly inapposite in relation against private bodies. to such a body, which has no responsibility for that failure.

24. Nor in my view can an argument be based on the absence of a requirement in the 19 Treaty that directives should be published. That lacuna, remedied by the Treaty on 20 European Union, can be explained by the limited role envisaged for directives in the 22. It becomes difficult, also, in my view, to original Treaty, and is of little significance sustain a distinction in this respect between given the invariable practice of publishing in directives — which are, after all, the main, the Official Journal all legislative directives and often the only, form of Community leg­ of the type addressed to all Member States. islation provided for under many areas of the No doubt, if a particular directive had not Treaty — and other binding provisions of been published, the absence of publication Community law, namely treaties, regulations might have prevented it, like any other mea­ 21 and decisions, all of which, it is accepted, sure, from producing legal effects. may impose obligations on individuals.

would obliterate the distinction between individuals even as against private bodies. directives and regulations. To recognize that Perhaps a particular contrast could be drawn even the provisions of a directive may be in this respect between the Community legal directly enforceable, in the exceptional case order and the international legal order. where they have not been correctly trans­ posed, in no way affects the obligation of Member States to take all measures necessary to implement them; while regulations, being directly applicable, do not normally require implementation. Moreover, a directive, as we have seen, will produce legal effects only after the period which it lays down for its implementation has expired. Regulations and directives will remain different instruments, appropriate in different situations and achieving their aims by different means, even 27. It is a notorious weakness of interna­ if it is recognized that in certain circum­ tional law that a treaty may not be enforce­ stances a directive which has not been cor­ able in the courts of a State party to it, even rectly implemented may impose obligations if the treaty provisions themselves are apt to on certain private entities. be applied by the courts. This regrettable result is especially likely to occur in so-called 'dualist' States which do not recognize any constitutional principle giving internal legal effect to treaties binding on them under international law. Thus it may often arise, in an international transaction between private parties, that a party to the transaction, intending that the transaction should be gov­ erned by a particular treaty, takes care to ascertain that the treaty has been ratified by the State of the other party, but finds when a dispute occurs that the treaty does not form part of that State's domestic law and will not 26. More than 30 years ago in Van Gend en be applied by that State's courts. 21 Loos the Court recognized the specific character of Community law as a system of law which could not be reduced to an arrangement between States, as was often the case in traditional international law. After the developments in the Community legal sys­ tem which have taken place since then, it may be necessary to recognize that in certain circumstances directives which have not been properly implemented may confer rights on

30. The possibility for the individual, under 26 Francovich, to claim damages against the 29. There are sound reasons of principle for assigning direct effect to directives without any distinction based on the status of the defendant. It would be consistent with the 24 — See e. g. Manin, 'L'invocabilité des directives: quelques interrogations', Revue Tńmestńelle de Droit need to ensure the effectiveness of Commu­ Européen, 1990, p . 669; Emmert, 'Horizontale Dritt­ wirkung von Richtlinien? Lieber ein Ende mit Schrecken nity law and its uniform application in all the als ein Schrecken ohne Ende!', in Europäisches Wirtschafts- Member States. It would be consistent, in und Steuerrecht, 1992, p . 56; Boch and Lane, 'European Community Law in national courts: a continuing contra­ particular, with the recent emphasis in the diction', Leiden journal of International Law, 1992, p . 171; Van Gerven, 'The horizontal effect of directive provisions Court's case-law on the overriding duty of revisited — the reality of catchwords', Institute of Euro­ national courts to provide effective remedies pean Public Law, University of Hull, 1993; Emmert and 23 Pereira de Azevedo, 'L'effet horizontal des directives. La for the protection of Community rights. It jurisprudence de la CJCE: un bateau ivre?', Revue Tńmes­ trielle de Droit Européen, 1993, p . 503; Mangas Martín, in Rodríguez Iglesias and Liñán Nogueras (eds.), El derecho comunitario europeo y su aplicación judicial, 1993, at 77-79.

25 — See Marshall I, paragraph 31. 23 — See e. g. Case C-213/89 Factortame [1990] ECR I-2433 and 26 — Joined Cases C-6/90 & C-9/90 Francovich & Others [1991] Case C-271/91 Marshall II, judgment of 2 August 1993. ECR I-5357.

31. It cannot, I think, be objected that imposing obligations on individuals will prejudice legal certainty. On the contrary, perhaps the most significant feature of the existing case-law on this point is that it has 27 generated uncertainty. It has led, first, to a very broad interpretation of the notion of Member State so that directives can be enforced even against commercial enterprises in which there is a particular element of State 28 participation or control, notwithstanding that those enterprises have no responsibility 32. Because the existing case-law already for the default of the Member States, and requires national courts in effect to enforce notwithstanding that they might be in direct directives against individuals, by construing competition with private sector undertakings all provisions of national law, whether or not against which the same directives are not adopted for the purpose of implementing a enforceable. And it has led to great uncer­ directive and whether prior or subsequent to tainty on the scope of national legislation, in the directive, so as to give effect to the pro­ visions of directives, it would not be a radical

27 — Sec the Opinion of Advocate Genera! Van Gcrven of 26 January 1993 in Case C-271/9I Marshall II, note 23 above, paragraph 12, and the authors cited at note 24 above. 29 — See for an extreme example Case C-106/89 Marleasing 28 — Sec Case C-18S/89 Foster v British Gas [1990] ECR 1-3313. [1990] ECR 1-4135.

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OPINION OF MR JACOBS — CASE C-316/93

departure from the existing state of the law, should be conferred on individuals, and that in terms of its practical consequences, to obligations should be imposed on individu­ assign horizontal direct effect to directives; als, should be enforceable at the suit of the such direct effect will arise only when it is plaintiff unless the legitimate expectations of impossible so to construe any provision of the defendant would thereby be defeated. national law. The consequences of such a departure could in any event, if necessary, be cushioned by limiting the temporal effect of the Court's new ruling, for reasons similar to those adopted by the Court in Defrenne 30 II, so as to exclude or restrict its applica­ tion to the past.

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VANEETVELD

particular Member State was in default in 36. For the above reasons, if the question transposing the directive in question? Just as had called for an answer, I would have taken the Court has recognized that a Member the view that the provisions in issue do cre­ State cannot rely on its own default, so it ate rights for individuals which the national seems clear that an insurance company, in courts must protect, even against bodies such circumstances, should not be able to which are not emanations of the State. I take advantage of the default of a Member repeat, however, that the question does not, State. in my view, need to be answered in this case.

Conclusion

37. Accordingly in my opinion it is sufficient to give the following answer to the questions referred by the national court:

Before the date of 31 December 1988 laid down by Article 5 (2) of the Second Council Directive on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, the provi­ sions of that directive did not create rights for individuals which the national courts must protect.