Opinion of Advocate General Bot delivered on 10 April 2018.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2018:223
• Date: 10 April 2018
• Docket Number: C-122/17
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

BOT

delivered on 10 April 2018 (1)

Case C‑122/17

David Smith

v

Patrick Meade,

Philip Meade,

FBD Insurance plc,

Ireland,

Attorney General

(Request for a preliminary ruling from the Court of Appeal, Ireland)

(Reference for a preliminary ruling — Approximation of laws — Insurance against civil liability in respect of the use of motor vehicles — Third Directive 90/232/EEC — Article 1 — Liability for personal injury caused to all passengers other than the driver — Compulsory insurance — Direct effect of directives — Obligation to disapply national legislation contrary to a directive — Whether the State may rely on a directive against an individual)

1. This request for a preliminary ruling concerns the interpretation of Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles. (2)

2. The request has been made in the context of a dispute initially between Mr David Smith, one the one hand, and Mr Patrick Meade, Mr Philip Meade, FBD Insurance plc (‘FBD’), Ireland and the Attorney General, on the other, concerning compensation for injuries suffered by Mr Smith as a result of a road traffic accident involving a vehicle driven by Mr Patrick Meade and owned by Mr Philip Meade.

3. In its judgment of 19 April 2007, Farrell (C‑356/05, EU:C:2007:229), the Court held that Article 1 of the Third Directive was to be interpreted as precluding national legislation whereby compulsory motor vehicle civil liability insurance does not cover liability for personal injuries to persons travelling in a part of a motor vehicle which has not been designed and constructed with seating accommodation for passengers. (3) The Court also held that Article 1 of the Third Directive satisfied all the conditions necessary for it to produce direct effect and, accordingly, conferred rights upon which individuals may rely directly before the national courts. (4)

4. The Court is called upon to clarify the consequences of its judgment of 19 April 2007, Farrell (C‑356/05, EU:C:2007:229), in the following context: although the initial dispute was between Mr Smith, on the one hand, and Messrs Meade, joined by FBD, Ireland and the Attorney General as defendants, on the other, the parties at the stage of the proceedings at which the present question was referred for a preliminary ruling are FBD, which is subrogated to the rights of Mr Smith, and the Irish State. In that context, the Irish State considers, as a defence, that the Third Directive is capable of imposing on FBD the obligation to compensate Mr Smith. This therefore raises the general issue, which is certainly not new, but which arises in particular procedural circumstances, of whether a directive can have the effect of imposing obligations on an individual in a situation where the State has transposed that directive incorrectly.

5. In the present Opinion, I shall set out, first, the reasons why I consider that, in the context of a dispute between, on the one hand, an insurance company, which is subrogated to the rights of a victim to whom it has paid compensation, and, on the other hand, the State, the national court is required to disapply the provisions of its national law whereby compulsory motor vehicle civil liability insurance does not cover liability for personal injuries to persons travelling in a part of a motor vehicle which has not been designed and constructed with seating accommodation for passengers, such provisions having been found to be contrary to Article 1 of the Third Directive by the judgment of 19 April 2007, Farrell (C‑356/05, EU:C:2007:229).

6. Next, I shall explain why I consider that such a disapplication of the provisions of national law that are contrary to Article 1 of the Third Directive cannot have the consequence of imposing on the insurer, who has complied with such provisions, the responsibility for compensating the victim for injuries or damage not covered by the approved insurance policy.

I. Legal framework

A. EU law

7. 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 (5) repealed 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 (6) as well as 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 (7) and the Third Directive. Nevertheless, in the light of the material time in the main proceedings, it is appropriate to have regard to the repealed directives.

8. Under Article 3(1) of the First Directive:

‘Each Member State shall ... 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 these measures.’

9. Article 1(1) of the Second Directive provided:

‘The insurance referred to in Article 3(1) of [the First Directive] shall cover compulsorily both damage to property and personal injuries.’

10. The first subparagraph of Article 2(1) of that directive provided:

‘Each Member State shall take the necessary measures to ensure that any statutory provision or any contractual clause contained in an insurance policy issued in accordance with Article 3(1) of Directive 72/166/EEC, which excludes from insurance the use or driving of vehicles by:

– ...

– persons who are in breach of the statutory technical requirements concerning the condition and safety of the vehicle concerned,

shall, for the purposes of Article 3(1) of [the First Directive], be deemed to be void ...’

11. The first paragraph of Article 1 of the Third Directive provided:

‘... the insurance referred to in Article 3(1) of [the First Directive] shall cover liability for personal injuries to all passengers, other than the driver, arising out of the use of a vehicle.’

B. Irish law

12. Section 56(1) of the 1961 Road Traffic Act, in the version in force at the material time in the main proceedings (‘the 1961 Act’), provided that a motorist could not drive a mechanically propelled vehicle on a public road without an approved policy of insurance in force covering negligent use of the vehicle resulting in a liability to pay damages to any person, exclusive of the excepted persons.

13. Section 56(3) of the 1961 Act provided that the use of a vehicle in contravention of the prohibition contained in section 56(1) constituted a criminal offence.

14. Under section 65(1)(a) of the 1961 Act, an ‘excepted person’, within the meaning of section 56(1) of that act, was:

‘Any person claiming in respect of injury to himself sustained while he was in or on a mechanically propelled vehicle (or a vehicle drawn thereby) to which the relevant document relates, other than a mechanically propelled vehicle, or a drawn vehicle, or vehicles forming a combination of vehicles, of a class specified for the purposes of this paragraph by regulations made by the Minister, provided that such regulations shall not extend compulsory insurance in respect of civil liability to passengers to:

(i) any part of a mechanically propelled vehicle, other than a large public service vehicle, unless that part is designed and constructed with seating accommodation for passengers, or

(ii) a passenger seated in a caravan attached to a mechanically propelled vehicle while such a combination of vehicles is moving in a public place.’

15. Article 6(1)(a) of the Road Traffic (Compulsory Insurance) Regulations 1962, in the version in force at the material time in the main proceedings (‘the 1962 Regulations’), provided:

‘The following vehicles are hereby specified for the purpose of [section 65(1)(a) of the 1961 Act]:

(a) all vehicles, other than cycles, designed and constructed with seating accommodation for passengers.’

II. The facts in the main proceedings and the question referred for a preliminary ruling

16. On 19 June 1999 Mr Smith was very seriously injured when the van in which he was travelling, as a passenger in the rear of the vehicle, collided with another vehicle also on the public road, near Tullyallen (Ireland). At the time of the accident, that van was being driven by Mr Patrick Meade and was owned by Mr Philip Meade. The van was not fitted with fixed seating accommodation for passengers travelling in the rear of the vehicle.

17. Mr Philip Meade’s motor insurance policy with FBD was in force at the time of the accident and was approved in accordance with the applicable Irish legislation. That policy contained an exclusion clause relating to passengers travelling in the rear of the van, which stipulated that liability to the ‘passenger’ covered only a passenger seated on fixed seating accommodation in the front of the vehicle.

18. Mr Smith sued Messrs Meade for negligence and fault.

19. Following the notification of the claim for compensation made by Mr Smith, FBD, by letter of 13 August 2001, refused to provide an indemnity to Mr Philip Meade in respect of the personal injuries suffered by Mr Smith. That insurance company invoked the exclusion clause contained in the insurance policy and maintained that that policy did not cover personal injuries to persons being carried as passengers in a part of the vehicle which is not designed and constructed with seating accommodation for passengers.

20. On 19 April 2007 the Court delivered its judgment in Farrell (C‑356/05, EU:C:2007:229) in which it held, in...