Opinion of Advocate General Bobek delivered on 26 April 2018.

• Jurisdiction: European Union
• Celex Number: 62017CC0080
• ECLI: ECLI:EU:C:2018:290
• Date: 26 April 2018
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 26 April 2018(1)

Case C‑80/17

Fundo de Garantia Automóvel

v

Alina Antónia Destapado Pão Mole Juliana

Cristiana Micaela Caetano Juliana

(Request for a preliminary ruling from the Supremo Tribunal de Justiça (Supreme Court, Portugal))

(Reference for a preliminary ruling — Motor vehicle civil liability insurance — Obligation to take out insurance — Scope — Notion of ‘use of vehicle’)

I. Introduction

1. Due to medical problems Ms Alina Juliana stopped driving her car and left it in her yard. She did not take out insurance against civil liability. Without her permission, her son took the keys to the car and drove it away from the yard. While on public roads, he lost control of the vehicle. He and two passengers were killed as a result of the accident.

2. The competent national compensation body, the Fundo de Garantia Automóvel (‘the Fund’), paid out compensation. The Fund then sought to recover that money from Ms A. Juliana, owner of the car. In her defence, Ms A. Juliana argues that she was under no obligation to insure the vehicle because, although she owned it, she had taken it off the road and did not intend to drive it. The Fund argues that an obligation to insure did exist, because the vehicle was roadworthy.

3. In the context of that dispute, and in the light of Motor Vehicle Directives 72/166/EEC (2) and 84/5/EEC (3) (‘the First Directive’ and ‘the Second Directive’), the Supremo Tribunal de Justiça (Supreme Court, Portugal) asks first whether, in such circumstances, the owner of a vehicle is obliged to insure it. Second, the referring court asks whether the Fund has a right of subrogation against the owner, even if the owner is not liable for the accident.

II. Legal framework

A. EU law

1. Directive 72/166

4. Articles 1 and 3 of the First Directive provide as follows:

‘Article 1

For the purposes of this Directive:

1. “vehicle” means any motor vehicle intended for travel on land and propelled by mechanical power, but not running on rails, and any trailer, whether or not coupled;

…

4. “territory in which the vehicle is normally based” means

– the territory of the State of which the vehicle bears a registration plate, irrespective of whether the plate is permanent or temporary; or

– in cases where no registration is required for a type of vehicle but the vehicle bears an insurance plate, or a distinguishing sign analogous to the registration plate, the territory of the State in which the insurance plate or the sign is issued; or

– in cases where neither registration plate nor insurance plate nor distinguishing sign is required for certain types of vehicle, the territory of the State in which the person who has custody of the vehicle is permanently resident; or

– in cases where the vehicle does not bear any registration plate or bears a registration plate which does not correspond or no longer corresponds to the vehicle and has been involved in an accident, the territory of the State in which the accident took place, for the purpose of settling the claim as provided for in the first indent of Article 2(2) of this Directive or in Article 1(4) of [the Second Directive];

…

Article 3

1. Each Member State shall, subject to Article 4, 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.

2. Each Member State shall take all appropriate measures to ensure that the contract of insurance also covers:

– according to the law in force in other Member States, any loss or injury which is caused in the territory of those States;

– any loss or injury suffered by nationals of Member States during a direct journey between two territories in which the Treaty establishing the European Economic Community is in force, if there is no national insurers’ bureau responsible for the territory which is being crossed; in that case, the loss or injury shall be covered in accordance with the internal laws on compulsory insurance in force in the Member State in whose territory the vehicle is normally based.’

2. Directive 84/5

5. Articles 1 and 2 of the Second Directive provide as follows:

‘Article 1

1. The insurance referred to in Article 3(1) of Directive 72/166/EEC shall cover compulsorily both damage to property and personal injuries.

…

4. Each Member State shall set up or authorise a body with the task of providing compensation, at least up to the limits of the insurance obligation for damage to property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in paragraph 1 has not been satisfied.

The first subparagraph shall be without prejudice to the right of the Member States to regard compensation by the body as subsidiary or non-subsidiary and the right to make provision for the settlement of claims between the body and the person or persons responsible for the accident and other insurers or social security bodies required to compensate the victim in respect of the same accident. However, Member States may not allow the body to make the payment of compensation conditional on the victim establishing in any way that the person liable is unable or refuses to pay.

…

Article 2

1. 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 do not have express or implied authorisation thereto, or

– persons who do not hold a licence permitting them to drive the vehicle concerned, or

– 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 Directive 72/166/EEC, be deemed to be void in respect of claims by third parties who have been victims of an accident.

However the provision or clause referred to in the first indent may be invoked against persons who voluntarily entered the vehicle which caused the damage or injury, when the insurer can prove that they knew the vehicle was stolen.

Member States shall have the option — in the case of accidents occurring on their territory — of not applying the provision in the first subparagraph if and in so far as the victim may obtain compensation for the damage suffered from a social security body.

2. In the case of vehicles stolen or obtained by violence, Member States may lay down that the body specified in Article 1(4) will pay compensation instead of the insurer under the conditions set out in paragraph 1 of this Article; where the vehicle is normally based in another Member State, that body can make no claim against anybody in that Member State.

The Member States which, in the case of vehicles stolen or obtained by violence, provide that the body referred to in Article 1(4) shall pay compensation, may fix in respect of damage to property an excess of not more than 250 ECU for which the victim may be responsible.’

B. National law

1. Decree Law No 522

6. According to the request for a preliminary ruling, at the date of the accident, Decreto-Lei No 522/85 — Seguro Obrigatório de Responsabilidade Civil Automóvel (Decree Law No 522/85 on compulsory automobile insurance against civil liability) of 31 December 1985 was in force in Portugal (‘Decree Law No 522/85’). Decree Law No 522/85 provides:

Article 1(1): ‘Every person who may be civilly liable for compensation for financial damage and non-financial damage deriving from personal or material injuries caused to third parties by any land motor vehicle … must, to enable such vehicles to be used on the roads, be covered … by insurance covering such liability.’

Article 2: ‘The obligation to insure falls upon the owner of the vehicle, except in the cases of ...’

7. Article 8(1) and (2) of Decree Law No 522/85 states that ‘the contract covers the civil liability of the policyholder, of the persons under an obligation to insure, as provided in Article 2, and of the lawful keepers and drivers of the vehicle’ and also covers ‘the payment of compensation owed by those responsible for the theft or robbery, the unlawful use of a vehicle belonging to another or traffic accidents knowingly caused …’.

8. Under Article 21, it is for the Fund to ‘pay, in accordance with the present Chapter, the compensation arising from the accidents caused by vehicles subject to compulsory insurance, registered in Portugal ...’.

9. Finally, Article 25(1) and (3) provide that, ‘once compensation has been paid, the Fund shall be subrogated to the rights of the injured party, having the right also to statutory interest and reimbursement of the expenses incurred by it in the assessment and settlement’, and ‘persons who, while being under the obligation to insure, have not taken out insurance, may be sued by the Fund, as set out in paragraph 1, having the right of recovery against other persons liable for the accident, if any, in relation to the amounts paid’.

2. Civil Code

10. Article 503(1) of the Portuguese Civil Code provides:

‘The person with effective control of any motor vehicle and who uses it in his own interests, even if acting through an agent, is liable for the damage resulting from the risks posed by the vehicle itself, even when the latter is not in use.’

III. Facts, procedure and the questions referred

11. Due to medical problems, Ms A. Juliana stopped driving her car and left it in her yard. She did not take out insurance against civil liability.

12. On 18 or 19 November 2006, her son removed the keys to the vehicle from a drawer in her room without her permission or knowledge, and drove the car out of the yard.

13. On 19 November 2006, her son...