Gebhard Stark v D.A.S. Österreichische Allgemeine Rechtsschutzversicherung AG.

• Jurisdiction: European Union
• Celex Number: 62010CJ0293
• ECLI: ECLI:EU:C:2011:355
• Date: 26 May 2011
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling
• Docket Number: C-293/10

Case C-293/10

Gebhard Stark

v

D.A.S. Österreichische Allgemeine Rechtsschutzversicherung AG

(Reference for a preliminary ruling from the Landesgericht Innsbruck)

(Legal expenses insurance – Directive 87/344/EEC – Article 4(1) – Freedom of the insured person to choose his lawyer – Limitation of the reimbursement allowed in respect of the costs relating to representation of the insured person in judicial proceedings – Reimbursement limited to the amount corresponding to that claimed by a lawyer established in the judicial district of the court having jurisdiction at first instance)

Summary of the Judgment

Freedom of movement for persons – Freedom of establishment – Legal expenses insurance – Directive 87/344 – Right of the insured person to choose his legal representative freely – Extent

(Council Directive 87/344, Art. 4(1))

Article 4(1) of Directive 87/344 on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance must be interpreted as not precluding a national provision under which it may be agreed that a person covered by legal expenses insurance may select, in order to have his interests represented in administrative or judicial proceedings, only persons professionally authorised to represent parties who have their chambers at the place of the court or administrative authority having jurisdiction at first instance, on condition that, in order not to render meaningless the insured person’s freedom to choose the person instructed to represent him, that restriction relates only to the extent of the cover by the legal insurance provider in respect of costs linked to the involvement of a representative and that the reimbursement actually provided by that insurer is sufficient, this being a matter for the referring court to determine.

(see para. 36, operative part)

JUDGMENT OF THE COURT (Fourth Chamber)

26 May 2011 (*)

(Legal expenses insurance – Directive 87/344/EEC – Article 4(1) – Freedom of the insured person to choose his lawyer – Limitation of the reimbursement allowed in respect of the costs relating to representation of the insured person in judicial proceedings – Reimbursement limited to the amount corresponding to that claimed by a lawyer established in the judicial district of the court having jurisdiction at first instance)

In Case C‑293/10,

REFERENCE for a preliminary ruling under Article 267 TFEU from the Landesgericht Innsbruck (Austria), made by decision of 22 April 2010, received at the Court on 14 June 2010, in the proceedings

Gebhard Stark

v

D.A.S. Österreichische Allgemeine Rechtsschutzversicherung AG,

THE COURT (Fourth Chamber),

composed of J.‑C. Bonichot, President of the Chamber, K. Schiemann, L. Bay Larsen, C. Toader (Rapporteur) and A. Prechal, Judges,

Advocate General: V. Trstenjak,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– Mr Stark, by H. Kofler, Rechtsanwalt,

– D.A.S. Österreichische Allgemeine Rechtsschutzversicherung AG, by E.R. Karauscheck, Rechtsanwalt,

– the Austrian Government, by E. Riedl, acting as Agent,

– the European Commission, by K.-Ph. Wojcik and N. Yerrell, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This reference for a preliminary ruling concerns the interpretation of Article 4(1) of Council Directive 87/344/EEC of 22 June 1987 on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance (OJ 1987 L 185, p. 77).

2 The reference has been submitted in the course of proceedings between the insurance company D.A.S. Österreichische Allgemeine Rechtsschutzversicherung AG (‘D.A.S.’) and Mr Stark concerning, in particular, the validity of a clause included in the general conditions applicable to legal expenses insurance that entitles the insurer to limit the benefits under that cover to reimbursement of the amount normally claimed by a lawyer established in the place of the court before which proceedings coming within the scope of that cover have been brought.

Legal context

European Union (‘EU’) legislation

3 The 11th recital in the preamble to Directive 87/344 reads:

‘… the interest of persons having legal expenses cover means that the insured person must be able to choose a lawyer or other person appropriately qualified according to national law in any inquiry or proceedings and whenever a conflict of interests arises’.

4 Article 1 of Directive 87/344 provides:

‘The purpose of this Directive is to coordinate the provisions laid down by law, regulation or administrative action concerning legal expenses insurance … in order to facilitate the effective exercise of freedom of establishment and preclude as far as possible any conflict of interest arising in particular out of the fact that the insurer is covering another person or is covering a person in respect of both legal expenses and any other class … and, should such a conflict arise, to enable it to be resolved.’

5 Article 2(1) of the Directive reads as follows:

‘This Directive shall apply to legal expenses insurance. Such consists in undertaking, against the payment of a premium, to bear the costs of legal proceedings and to provide other services directly linked to insurance cover, in particular with a view to:

– securing compensation for the loss, damage or injury suffered by the insured person, by settlement out of court or through civil or criminal proceedings,

– defending or representing the insured person in civil, criminal, administrative or other proceedings or in respect of any claim made against him.’

6Article 4(1) of Directive 87/344 provides:

‘Any contract of legal expenses insurance shall expressly recognise that:

(a) where recourse...