Opinion of Advocate General Bobek delivered on 8 December 2020.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2020:1003
• Date: 08 December 2020
• Celex Number: 62019CC0383
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 8 December 2020(1)

Case C‑383/19

Powiat Ostrowski

v

Ubezpieczeniowy Fundusz Gwarancyjny

(Request for a preliminary ruling from the Sąd Rejonowy w Ostrowie Wielkopolskim (District Court of Ostrów Wielkopolski, Poland))

(Reference for a preliminary ruling – Approximation of laws – Directive 2009/103/EC – Motor vehicle civil liability insurance – Article 3(1) – Obligation to take out a civil liability insurance contract relating to the use of motor vehicles – Vehicle not capable of being driven due to its technical state – Division of tasks under Article 267 TFEU – Interpretation and application of EU law)

I. Introduction

1. When does the obligation to take out civil liability insurance begin and end pursuant to Article 3 of 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? (2)

2. In its judgment in Juliana, the Court stated that ‘a vehicle which is registered and therefore has not been officially withdrawn from use, and which is capable of being driven, corresponds to the concept of “vehicle” within the meaning of Article 1(1) [Directive 72/166] and, consequently, does not cease to be subject to the insurance obligation laid down in Article 3(1) of that directive’. (3)

3. Faced with a factual scenario in which a motor vehicle was not formally withdrawn from use, but which at the same time was apparently not capable of being driven due to its poor technical state, the Sąd Rejonowy w Ostrowie Wielkopolskim (District Court of Ostrów Wielkopolski, Poland), wonders, in essence, whether in Juliana, the Court indeed intended to set two cumulative conditions for the existence of an obligation to insure a motor vehicle under the directive.

II. Legal framework

A. EU law

4. Article 1 of Directive 2009/103 provides:

‘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:

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

(b) 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

(c) in cases where neither a registration plate nor an insurance plate nor a 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

(d) 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 …

…’

5. Article 3 of that directive, entitled ‘Compulsory insurance of vehicles’, provides, in its first paragraph:

‘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.’

6. Pursuant to Article 5 of that directive, entitled ‘Derogation from the obligation in respect of compulsory insurance of vehicles’:

1. 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 [European] Commission.

…

2. A Member State may derogate from Article 3 in respect of certain types of vehicle or certain vehicles having a special plate; the list of such types or of such vehicles shall be drawn up by the State concerned and communicated to the other Member States and to the Commission.

…’

7. Within Chapter 4 of Directive 2009/103, relating to ‘Compensation for damage caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in Article 3 has not been satisfied’, Article 10, entitled ‘Body responsible for compensation’, sets out in its first paragraph:

‘1. 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 Article 3 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.

…’

B. Polish law

8. Article 10(2) of the Ustawa z dnia 22 maja 2003 r. o ubezpieczeniach obowiązkowych, Ubezpieczeniowym Funduszu Gwarancyjnym i Polskim Biurze Ubezpieczycieli Komunikacyjnych (Law of 22 May 2003 on Compulsory Insurance, the Insurance Guarantee Fund and the Polish Motor Insurers’ Bureau; ‘the Law on Compulsory Insurance’ (Dz.U. of 2018, item 473)), provides:

‘An action may be brought before an ordinary court seeking to establish the compliance with or absence of the insurance obligation.’

9. In accordance with the wording of Article 23(1) of the Law on Compulsory Insurance, the keeper of a motor vehicle is required to conclude a compulsory civil liability insurance contract for motor vehicle keepers in respect of damage resulting from the use of the motor vehicle in his or her possession.

10. Pursuant to Article 31(3) of the Law on Compulsory Insurance:

‘In the event of the passing or transfer of the ownership of a registered motor vehicle, the keeper of which did not conclude a civil liability insurance contract for motor vehicle keepers despite an obligation to do so, the keeper to whom the ownership of the vehicle passed or was transferred shall be required to conclude a civil liability insurance contract for motor vehicle keepers on the date of the passing or transfer of the ownership of the motor vehicle, and by the time that the motor vehicle is put into use at the latest. If the transfer of possession of a registered motor vehicle has taken place without the passing or transfer of the ownership of that vehicle and the former keeper of that vehicle did not conclude a civil liability insurance contract for motor vehicle keepers despite having a obligation to do so, the subsequent keeper of the vehicle shall be required to conclude a civil liability insurance contract for motor vehicle keepers on the date of taking possession of that vehicle, and by the time that the motor vehicle is put into use at the latest.’

11. In accordance with Article 84(1) of the Law on Compulsory Insurance, the Insurance Guarantee Fund is the body empowered to monitor compliance with the obligation to conclude a civil liability insurance contract by holders of motor vehicles. Moreover, under Article 88(7), anyone who fails to take out such a contract is required to pay a fine to the Insurance Guarantee Fund.

12. Article 130a(10) of the Ustawa z dnia 20 czerwca 1997 r. Prawo o ruchu drogowym (Law of 20 June 1997 on Road Traffic (Dz.U. of 2018, item 1990)), in the version applicable to the main proceedings, provides:

‘As regards a vehicle that has been removed from the road, in the circumstances set out in paragraph 1 or 2 [in particular, when the technical state of the vehicle endangers road safety or in the event of a failure to comply with parking rules], the starosta (chief district official) shall apply to the court for a decision on the forfeiture of the vehicle to the powiat (district), if the owner or an authorised person, having been properly notified, has not collected the vehicle within 3 months of the date of its removal. The notification shall contain information concerning the consequences of failure to collect a vehicle.’

III. Facts, national proceedings and the questions referred

13. By decision of 16 January 2018, the Sąd Rejonowy w Ostrowie Wielkopolskim (District Court of Ostrów Wielkopolski) ordered the confiscation, in favour of the local government authority, Powiat Ostrowski (Ostrów District, Poland; ‘the applicant’), of a Renault Clio 1.5 DCI vehicle, registered in Poland and parked in a guarded car park following its removal from public roads. The confiscation order became final on 7 February 2018, thereby making the applicant the owner of the vehicle.

14. On 6 February 2018, the applicant submitted an application for the above decision to be served together with an order of enforceability and for the enforcement clause to be affixed. These requests were granted on 20 April 2018. Consequently, the applicant concluded an insurance contract for the vehicle with effect from 23 April 2018.

15. According to the documents in the file, the vehicle in question was examined by an expert on 2 May 2018. That assessment established that it was impossible to start the vehicle, that it was in a poor technical state, that it constituted scrap metal and had a market value of 400 Polish zlotys (PLN). Given its technical state, the applicant ordered that the vehicle be scrapped. The vehicle was dismantled before it was subsequently deregistered on 22 June 2018.

16. On 25 September 2018, the...