Orde van Vlaamse Balies and Ordre des barreaux francophones et germanophone v Ministerraad.

• Jurisdiction: European Union
• Celex Number: 62018CJ0667
• ECLI: ECLI:EU:C:2020:372
• Date: 14 May 2020
• Docket Number: C-667/18
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Third Chamber)

14 May 2020 (*)

(Reference for a preliminary ruling — Directive 2009/138/EC — Legal expenses insurance — Article 201 — Insured person’s right freely to choose a lawyer — Proceedings — Meaning — Mediation proceedings)

In Case C‑667/18,

REQUEST for a preliminary ruling under Article 267 TFEU from the Grondwettelijk Hof (Constitutional Court, Belgium), made by decision of 11 October 2018, received at the Court on 25 October 2018, in the proceedings

Orde van Vlaamse Balies,

Ordre des barreaux francophones et germanophone

v

Ministerraad,

THE COURT (Third Chamber),

composed of A. Prechal, President of the Chamber, K. Lenaerts, President of the Court, acting as a Judge of the Third Chamber, L.S. Rossi (Rapporteur), J. Malenovský and F. Biltgen, Judges,

Advocate General: H. Saugmandsgaard Øe,

Registrar: M. Ferreira, Principal Administrator,

having regard to the written procedure and further to the hearing on 2 October 2019,

after considering the observations submitted on behalf of:

– the Orde van Vlaamse Balies and the Ordre des barreaux francophones et germanophone, by F. Judo and N. Goethals, advocaten,

– the Belgian Government, by C. Pochet, L. Van den Broeck and M. Jacobs, acting as Agents, and by S. Ronse, avocat, and T. Quintes, advocaat,

– the European Commission, by H. Tserepa-Lacombe and by A. Nijenhuis and F. Wilman, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 11 December 2019,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 201 of Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ 2009 L 335, p. 1).

2 The request has been made in proceedings between the Orde van Vlaamse Balies and the Ordre des barreaux francophones et germanophone (‘the bar associations’) and the Ministerraad (Council of Ministers, Belgium) concerning the freedom of the insured person, in the context of a legal expenses insurance contract, to choose his or her representative in mediation proceedings.

Legal context

European Union law

Directive 87/344/EEC

3 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), which was repealed by Directive 2009/138, provided in Article 4 as follows:

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

(a) where recourse is had to a lawyer or other person appropriately qualified according to national law in order to defend, represent or serve the interests of the insured person in any inquiry or proceedings, that insured person shall be free to choose such lawyer or other person.

…

2. Lawyer means any person entitled to pursue his professional activities under one of the denominations laid down in Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services [(OJ 1977 L 78, p. 17)].’

Directive 2009/138

4 Recital 16 of Directive 2009/138 is worded as follows:

‘The main objective of insurance and reinsurance regulation and supervision is the adequate protection of policy holders and beneficiaries. The term beneficiary is intended to cover any natural or legal person who is entitled to a right under an insurance contract. Financial stability and fair and stable markets are other objectives of insurance and reinsurance regulation and supervision which should also be taken into account but should not undermine the main objective.’

5 Title II of that directive, entitled ‘Specific provisions for insurance and reinsurance’, includes Chapter II, concerning ‘provisions specific to non-life insurance’, Section 4 of which, entitled ‘Legal expenses insurance’, contains Articles 198 to 205.

6 Article 198 of that directive, entitled ‘Scope of this Section’, provides in paragraph 1 as follows:

‘This Section shall apply to legal expenses insurance referred to in class 17 in Part A of Annex I whereby an insurance undertaking promises, 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 the following:

…

(b) defending or representing the insured person in civil, criminal, administrative or other proceedings or in respect of any claim made against that person.’

7 Article 201 of Directive 2009/138, entitled ‘Free choice of lawyer’, provides as follows:

‘1. Any contract of legal expenses insurance shall expressly provide that:

(a) where recourse is had to a lawyer or other person appropriately qualified according to national law in order to defend, represent or serve the interests of the insured person in any inquiry or proceedings, that insured person shall be free to choose such lawyer or other person;

…

2. For the purposes of this Section “lawyer” means any person entitled to pursue his professional activities under one of the denominations laid down in [Directive 77/249].’

Belgian law

8 Article 156 of the Law of 4 April 2014 on insurance (Belgisch Staatsblad of 30 April 2014, p. 35487), was worded as follows:

‘Any insurance contract relating to legal expenses shall explicitly provide at least that:

1° when it is necessary to proceed to judicial or administrative proceedings, the insured person can freely choose a lawyer or any other person who, under the law applicable to the proceedings, has the necessary qualifications to defend, represent or serve his interests;

…’

9 Article 2 of the Law amending the Law of 4 April 2014 on insurance, which seeks to ensure the free choice of a lawyer or any other person who, under the law applicable to the proceedings, has the necessary qualifications to defend his interests at every judicial stage in the context of a legal expenses insurance contract, of 9 April 2017 (Belgisch Staatsblad of 25 April 2017, p. 53207) (‘the Law of 9 April 2017’) provides as follows:

‘In Article 156 of the Law of 4 April 2014 on insurance, paragraph 1 shall be replaced by the following:

“1° the insured person shall be free to choose, when it is necessary to proceed to judicial, administrative or arbitration proceedings, a lawyer or any other person who, under the law applicable to the proceedings, has the necessary qualifications to defend, represent or serve his interests and, in the case of arbitration, mediation or any other recognised non-judicial method for settling disputes, a person who has the necessary qualifications and is...