C-129/94

* Original language: German. 1 — Audiencia Provincial de Sevilla, Sección Primera (First Chamber). 2 — Council Directive of 24 April 1972 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such lia- bility (OJ 1972 L 103, p. 1). 4. The Seville Provincial Court, hearing the 3 -— Second Council Directive of 30 December 1983 on the approximation of the laws of the Member States relating to appeal, makes no secret of its view — which insurance against civil liability in respect of the use of motor vehicles (OJ 1984 L 8, p. 17). it has also expressed in previous proceedings 4 — Third Council Directive of 14 May 1990 on the approxima- — that Spanish law must be interpreted in tion of the laws of the Member States relating to insurance accordance with the directives, so that any against civil liabilitv in respect of the use of motor vehicles (OJ 1990 I. 129, p. 33). exclusion of liability which is effective as

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between insurer and insured should in any 7. The Provincial Court submits the follow- event be invalid as against the injured party. ing questions to the Court of Justice for a It believes that the insurer is therefore preliminary ruling: undoubtedly liable to the victim, but may have a right of recourse against the person who caused the injury.

'(1) Does the wording of Article 3(1) of the First Council Directive 72/166/EEC of 24 April 1972 allow the internal rules of the system of compulsory insurance 5. The Provincial Court sets out in detail the against civil liability in respect of the reasons for its view of the law, but points out use of motor vehicles in each Member that another chamber of the same court 5 has State to lay down any exclusions already decided the relevant point of law dif- deemed fit or, on the contrary, must ferently, so that, in the interests of the uni- exclusions from cover be limited to form application of the law, it must be those expressly provided for in the Sec- assumed that there is doubt regarding the ond Council Directive 84/5/EEC of correct interpretation of Community law. 30 December 1983?

(5) If the provisions of the abovementioned directives, in particular Article 3(1) of 9. The national court's questions seek to Council Directive 72/166/EEC, allow establish whether the permitted exclusions exclusion of compulsory insurance from insurance cover against civil liability in cover against civil liability in respect of respect of the use of motor vehicles are laid the use of motor vehicles which is valid down exhaustively in the directives, so that as against the victim where the driver further exclusions arc per se inadmissible. If was intoxicated, may it be considered the Member States still have the power to that such a case entails an absence of permit exclusions from cover other than insurance as provided for in Article 1(4) those referred to in the directives, it must be of the Second Council Directive established whether those exclusions are 84/5/EEC which would determine pay­ effective only in the contractual relationship ment and cover by the body provided between the insured and the insurer or for in that article?' whether they may also be enforced as against an injured third party. It is therefore a matter of the preconditions for and limits on any exclusions from cover. Only if exclusions other than those referred to in the directives are permissible and may be enforced as against the injured party does the question 8. The appellant in the main proceedings, arise as to whether the guarantee body pro­ together with the Spanish, Greek and United vided for in Article 1(4) of Directive Kingdom Governments, and the Commis­ 84/5 may be required to accept responsibil­ sion, have taken part in the proceedings ity.

14. The Greek Government emphasizes the On the basis of the above premise the Span- importance which the directive places on the ish Government states that under Spanish protection of the victim and points out that law compensation must be paid to the vic- this protection was increased over the years, tim, and grounds for exclusion as between not just substantively, but also procedurally, the insurer and the insured cannot be so as to make it easier to obtain effective enforced against the injured party. That situ- compensation. The Greek Government's ation is therefore in conformity with Com- view of the law largely corresponds to that munity law. The view that only the exclu- taken by the Spanish Government. Exclu- sions referred to in Article 2 of Directive sions in conformity with the scheme of the 84/5 are ineffective as against an injured third directive are generally permissible, but they party is wrong, because the exclusion of lia- may not be to the detriment of the victim. bility as against the victim is not in confor- An exclusion on account of the driver's mity with the scheme of the directives. intoxication may take effect only as between Exclusion from insurance cover as against insurer and insured. Finally, in cases such as the drunken driver who caused the accident the present, the national guarantee body is is another matter. generally not liable, although it might

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nevertheless be so if any exclusion of liability 16. The United Kingdom Government fur- were also effective as against the victim. At ther suggests that Questions 4 and 5 should the hearing the representative of the Greek be answered in the negative. In the alterna- Government again stated that liability tive, it claims that the directives basically do should, in general, remain with the insurance not affect the relationship between the per- companies and should not be shifted on to son causing the damage and his insurance the national guarantee body. company. Their purpose is merely to protect third parties. Article 2 of Directive 84/5 shows that exclusions should not have any effects as against the victim.

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on account of the driver's intoxication is liability in respect of the use of motor vehi- valid also as against the injured party, the cles also assists in the creation and operation body referred to in Article 1(1) of the Sec- of a common market. At the hearing the ond Directive must therefore assume respon- Commission pointed out that the free move- sibility. ment of motor vehicle drivers is an autono- mous freedom of Community law.

Preliminary remarks

20. The Commission's reference in its writ- ten observations to what it claims is the dual nature of the directive's aims, namely, the abolition of frontier controls and, principally through the Third Directive, the creation of 18. There is no doubt that the answer to the similar protection for victims in the Com- questions must be sought in the context of munity, could result in the fundamental con- the rules laid down in Directive 72/166, nection between those aims being ignored. Directive 84/5 and Directive 90/232. The aims of the directives, and the relative impor- tance of those aims, are of decisive impor- tance when interpreting the rules in question here.

21. The second recital in the preamble to Directive 72/166 already clearly stated:

23. Accordingly, the protection of victims Question 1 does in fact enjoy the prominent position which the parties to the proceedings ascribe to it. The fact that the legal position of potential victims was improved by the Sec- ond and Third Directives does not mean that such protection was not already of funda- mental importance under the First Directive. In any case, the purpose of the later direc- tives was to remedy certain inadequacies in 25. The national court wishes to ascertain the system, some of which became apparent whether, on the basis of Article 3(1) of only in the course of time. For example, Directive 72/166, a Member State is generally Article 2(1) of Directive 84/5 concerning the free to lay down the exclusions from liability ineffectiveness of certain exclusion clauses as which it considers to be expedient or against victims was adopted in order to whether the permissible exclusions from improve the position of persons suffering cover are restricted to those provided for in damage, as was the provision in Article 1(4) Directive 84/5. Article 3(1) of Directive of Directive 84/5, expressly permitting 'any 72/166 provides: other practice which is more favourable to the victim'.

'Each Member State shall ... take all appro- 24. Consequently, the directives create the priate measures to ensure that civil liability legal framework for ensuring that persons in respect of the use of vehicles normally injured by a motor vehicle, wherever regis- based in its territory is covered by insurance. tered in the Community, can be certain of The extent of the liability covered and the compensation. The guarantee of compensa- terms and conditions of the cover shall be tion for damage caused by vehicles normally determined on the basis of these measures.' 10 based in another Member State, which the national insurers' bureau of the host country

'Each Member State shall take the necessary measures to ensure that any statutory provi- sion or any contractual clause contained in an insurance policy issued in accordance with Article 3(1) of Directive 72/166/EEC, 27. That provision might be regarded as which excludes from insurance the use or containing an exhaustive list of permissible driving of vehicles by: exclusions from insurance cover. However, it must also be viewed in its regulatory context and against the background of its legislative history. The freedom originally given to the Member States when drawing up the rules on insurance against civil liability proved, in — persons who do not have express or the course of time, to be detrimental to the implied authorization thereto, common market. The second to fifth recitals

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of Directive 84/5 testify to that effect. They the discretion retained by the Member States state: is circumscribed by minimum requirements and by other conditions and structural prin- ciples laid down by the directive.

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of their discretion under Article 3(1) of able for the insurer's liability as against the Directive 72/166 are not restricted by those victim to be more extensive than as against provided for in Article 2(1) of Directive the other party to the contract of insurance 84/5. or the person causing the damage, who are not necessarily the same persons.

Question 2 34. Upon reading the directives, one is struck by the fact that they do not lay down any specific requirements regarding the rela- tionship between the parties to the contract of insurance. The directives are silent as to the consequences of a breach of a duty of 31. The national court wishes to ascertain care by the insured or by the person causing whether an exclusion from insurance cover the damage. It can be concluded from this on the ground that the driver who caused the that the Member States or the contracting accident was unfit to drive because he was parties are relatively free to define the rela- under the influence of alcohol is compatible tionship between the parties to the contract with the directives. of insurance, but their freedom may, of course, be exercised only in compliance with the other provisions of the directives.

32. This question must be appraised in the light of the limits on the Member States' dis- 35. Consequently, it seems to be wholly per- cretion, to which I have already referred. If missible for legal consequences to be linked the national rule is within those limits, the to the failure of the insured party or the Court of Justice may not review it as to its driver to observe a duty to take due care. content. On the other hand, it is for the Where the driver is intoxicated, I therefore Court of Justice to indicate what those limits consider it permissible for liability to be are, so as to enable the national court to excluded as against the driver or for a right decide whether they have been observed. of recourse to be given.

whilst under the influence of alcohol, has 39. In my opinion, this approach justifies caused material damage with a motor vehicle the further conclusion that any objections by is compatible with the relevant legislation. the insurer, based on his contract with the insured, concerning any exclusions from cover are invalid as against the victim. If even the exclusions from cover listed in Article 2(1) of Directive 84/5, which are considered to be objectively justified, do not exempt the insurer, then still less should an exclusion Question 3 from liability or a right of recourse permit- ted where a person's conduct is blamewor- thy — as discussed in connection with the second question — lead to the insurer's lia- bility for damage being excluded as against the victim. Moreover, this conclusion is sup- ported by the directives' overall objective, to which I have already referred, namely the protection of victims. 37. The national court seeks to ascertain whether the statutory provisions and con- tractual clauses referred to in Article 2(1) of Directive 84/5, which exclude insurance cover but are void as against a third party 40. The answer to the third question must who has suffered harm, are to be regarded as therefore be as follows: an exhaustive list, so that any other statutory or contractual provision excluding liability would be valid as against him.

Exclusions from liability that are basically possible and permissible but go beyond the exclusions from insurance cover referred to in Article 2(1) of Directive 84/5 may not be relied upon as against the victim.

44. As can be seen from its wording, the question is predicated on the hypothesis that a defence based on the driver's intoxication could be valid as against the accident victim. It follows from my previous comments that, on legal grounds, such a hypothesis could not arise. On the basis of the view for which If a contractual clause excluding insurance I have contended, there would therefore be cover where the driver responsible for the no need to consider Question 5. However, damage is intoxicated, which is effective as should the Court not adopt that line of argu- between the insurer and the insured, may be ment and consider that it is possible for there relied upon as against a third party who has to be a lawful exclusion of cover as against suffered harm, this is incompatible with the the victim on grounds of the driver's intoxi- principles of Directive 72/166, Directive cation, Question 5 would be relevant. It 84/5 and Directive 90/232. should therefore be considered in the alter- native.

Question 5

45. It should, first, be emphasized again that 43. The national court's fifth and last ques- the premise on which the question is based is tion is intended to ascertain whether, if an a most unlikely one. Under the system estab- exclusion of insurance cover where the lished by the directive, a defence as against

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the person who has suffered harm appears to However, the directives themselves show be conceivable only if it can be proved that that, as a rule, it is the insurer of the vehicle he was himself guilty of misconduct. That that has caused damage who is responsible tends to be indicated, for example, by the for covering that damage. Only in cases in second subparagraph of Article 2(1) of which the vehicle is uninsured or unidenti- Directive 84/5, which states: fied, that is to say, if the responsible insurer cannot be established, must the body referred to in Article 1(4) of Directive 84/5 act. 12 Furthermore, the Member States may provide that the 'body' is under a duty to pay compensation in the case of vehicles stolen or obtained by violence. 13

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more extensive duty to pay compensation. 50. As Directive 84/5 as finally adopted The original proposal for Article 2 of the shows, the proposal did not survive in the Directive stated: Council. It was replaced by the first para- graph of Article 1(4), as now in force, which states:

'For the purposes of Article 1(3) of this Directive and Article 3(2) of Council Direc- tive 72/166/EEC, when an insurer refuses to 'Each Member State shall set up or authorize make payment by virtue of the law or the a body with the task of providing compensa- contractual provision authorized by the pro- tion, at least up to the limits of the insurance vision, the vehicle shall be treated as an unin- obligation for damage to property or per- sured vehicle.' 15 sonal injuries caused by an unidentified vehi- cle or a vehicle for which the insurance obli- gation provided for in paragraph 1 has not been satisfied. This provision shall be with- out prejudice to the right of the Member States to regard compensation by that body as subsidiary or non-subsidiary and the right 49. The vehicle was to be deemed to be to make provision for the settlement of uninsured in the case of all statutory or con- claims between that body and the person or tractual exclusions from cover. After objec- persons responsible for the accident and tions from the Economic and Social Com- other insurers or social security bodies mittee and a proposed amendment by the required to compensate the victim in respect European Parliament, the Commission sub- of the same accident.' 17 mitted an amended proposal for the direc- tive, Article 2(1) of which corresponded largely to the first paragraph of Article 2(1) as finally adopted, but whose second para- graph still stated:

(1) Exclusions from insurance cover which the Member States may determine in the exercise of their discretion under Article 3(1) of Directive 72/166 are not restricted by those provided for in Article 2(1) of Directive 84/5.

(2) An exclusion from insurance cover against civil liability with respect to a driver who, whilst under the influence of alcohol, has caused material damage with a motor vehicle is compatible with the relevant legislation.

(3) Exclusions from liability that are basically possible and permissible but go beyond the exclusions from insurance cover referred to in Article 2(1) of Directive 84/5 may not be relied upon as against the victim.

(4) If a contractual clause excluding insurance cover where the driver responsible for the damage is intoxicated, which is effective as between the insurer and the insured, may be relied upon as against a third party who has suffered harm,

18 — See the sixth subparagraph of Article 1(4) of Directive 84/5.

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