LM et NO représentées par CD v HUK-COBURG-Allgemeine Versicherung AG.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:992
• Date: 15 December 2022
• Docket Number: C-577/21
• Celex Number: 62021CJ0577
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Tenth Chamber)

15 December 2022 (*)

(Reference for a preliminary ruling – Compulsory insurance against civil liability in respect of the use of motor vehicles – Directive 2009/103/EC – Article 3, fourth paragraph – Concept of ‘personal injury’ – Cover by compulsory insurance – Road traffic accident – Death of a passenger – Right to compensation for minor children – Non-material damage – Suffering of a child resulting from the death of his or her parent as a result of that accident – Compensation only in the event of pathological damage’

In Case C‑577/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Sofiyski gradski sad (Sofia City Court, Bulgaria), made by decision of 11 August 2021, received at the Court on 20 September 2021, in the proceedings

LM,

NO

v

HUK-COBURG-Allgemeine Versicherung AG,

THE COURT (Tenth Chamber),

composed of M. Ilešič, acting as President of the Chamber, I. Jarukaitis (Rapporteur) and Z. Csehi, Judges,

Advocate General: J. Richard de la Tour,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– HUK-COBURG-Allgemeine Versicherung AG, by G.I. Ilieva, advokat,

– the German Government, by J. Möller, U. Bartl, J. Heitz, M. Hellmann and U. Kühne, acting as Agents,

– the European Commission, by C. Georgieva, D. Triantafyllou and H. Tserepa-Lacombe, acting as Agents,

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

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 1(1) of Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1984 L 8, p. 17), as amended by Directive 2005/14/EC of the European Parliament and of the Council of 11 May 2005 (OJ 2005 L 149, p. 14) (‘the Second Directive’).

2 The request has been made in proceedings between, on the one hand, LM and NO and, on the other hand, HUK-COBURG-Allgemeine Versicherung AG (‘HUK-COBURG’), an insurance company, concerning compensation by the latter, on the basis of compulsory civil liability in respect of the use of motor vehicles, for non-material damage suffered by LM and NO as a result of the death of their mother in a road traffic accident.

Legal context

European Union law

The Second Directive

3 Article 1(1) of the Second Directive provided:

‘The insurance referred to in Article 3(1) of [Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of 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 liability (OJ 1972 L 103, p. 1)] shall cover compulsorily both damage to property and personal injuries.’

Directive 2009/103/EC

4 Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability (OJ 2009 L 263, p. 11) codified the earlier directives relating to compulsory insurance against civil liability in respect of the use of motor vehicles, including the Second Directive, and consequently repealed them with effect from 27 October 2009. According to the correlation table in Annex II to Directive 2009/103, Article 1(1) of the Second Directive corresponds to the fourth paragraph of Article 3 of Directive 2009/103.

5 Article 1 of Directive 2009/103 contains the following definition:

‘For the purposes of this Directive:

…

(2) “injured party” means any person entitled to compensation in respect of any loss or injury caused by vehicles;

…’

6 Article 3 of that directive, entitled ‘Compulsory insurance of vehicles’, provides:

‘Each Member State shall, subject to Article 5, take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance.

The extent of the liability covered and the terms and conditions of the cover shall be determined on the basis of the measures referred to in the first paragraph.

…

The insurance referred to in the first paragraph shall cover compulsorily both damage to property and personal injuries.’

7 Article 5(1) of that directive, entitled ‘Derogation from the obligation in respect of compulsory insurance of vehicles’, provides in the first subparagraph:

“A Member State may derogate from Article 3 in respect of certain natural or legal persons, public or private; a list of such persons shall be drawn up by the State concerned and communicated to the other Member States and to the Commission.’

Regulation (EC) No 593/2008

8 The second subparagraph of Article 7(2) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6), entitled ‘Insurance contracts’, provides:

‘To the extent that the applicable law has not been chosen by the parties, the insurance contract shall be governed by the law of the country where the insurer has his habitual residence. Where it is clear from all the circumstances of the case that the contract is manifestly more closely connected with another country, the law of that other country shall apply.’

Regulation (EC) No 864/2007

9 Under Article 4(1) of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (OJ 2007 L 199, p. 40):

‘Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.’

German law

10 Under the heading ‘Non-material damage’, Paragraph 253 of the Bürgerliches Gesetzbuch (Civil Code), in the version applicable to the dispute in the main proceedings (‘the BGB’), is worded as follows:

‘1. Money may be sought as compensation for non-material damage only in the cases specified by law.

2. Where damages are to be paid on account of bodily injury, damage to health, freedom or sexual self-determination, fair compensation in monetary terms for non-material damage may also be sought.’

11 Paragraph 823 of the BGB, entitled ‘Obligation to make good damage’, provides in paragraph 1:

‘A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or other right of another person is liable to pay compensation to the other party for the damage arising from this.’

12 Under the heading ‘Direct right of action’, Paragraph 115 of the Gesetz über den Versicherungsvertrag (Law on Insurance Contracts) of 23 November 2007 (BGB1. 2007 I, p. 2631), in the version applicable to the dispute in the main proceedings, provides in paragraph 1:

‘The third party may also assert his or her right to compensation against the insurer

1. in the case of insurance against civil liability for the enforcement of an insurance obligation under the Law on compulsory insurance …

…

The right arises from the insurer’s obligations in respect of the insurance relationship and, in the absence of any obligation, from Article 117(1) to (4). The insurer must may pay monetary compensation. The insurer and the policyholder liable to pay compensation for damage shall be jointly and severally liable.’

13 Paragraph 7 of the...