Damijan Vnuk v Zavarovalnica Triglav d.d..

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2014:106
• Date: 26 February 2014
• Docket Number: C-162/13
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

MENGOZZI

delivered on 26 February 2014 ( 1 )

Case C‑162/13

Damijan Vnuk

v

Zavarovalnica Triglav d.d.(Request for a preliminary ruling

from the Vrhovno sodišče (Slovenia))

‛Insurance against civil liability in respect of motor vehicles — Concept of ‘the use of vehicles’ — Accident caused by a tractor towing a trailer while bales of hay were being put away in a barn’

1. By the present case, the Court is called on to define the scope of Council Directive 72/166/EEC 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. ( 2 )

2. Article 3(1) of that directive provides that ‘[e]ach 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’. It follows that, in order to define the scope of Directive 72/166, it is necessary to determine the meaning of ‘vehicle’ and ‘use’.

I – The main proceedings and the question referred for a preliminary ruling

3. The accident which has given rise to the main proceedings occurred on 13 August 2007 and is described by the referring court as having been caused by a tractor drawing a trailer — a vehicle in respect of which compulsory insurance against civil liability for damage caused by the use of motor vehicles had been taken out — when bales of hay were being put away in the loft of a barn. As he reversed in order to position the trailer in the barn, the tractor driver backed the trailer into a ladder on which the applicant in the main proceedings, Mr Vnuk, was standing. Mr Vnuk fell and was injured. He brought an action before the Slovenian courts for compensation for non-material damage against the insurance company with which the owner of the tractor had insured his vehicle.

4. Both the court at first instance and the court at second instance dismissed the action. They considered, in essence, that the main objectives of compulsory insurance are to shift the cost of risk to society and to promote the need for care to be taken of injured persons and passengers in road accidents. The circumstances in which the accident suffered by Mr Vnuk occurred did not, in their view, constitute a typical situation entailing the use of motor vehicles in traffic and Mr Vnuk’s injury was unconnected with transport on surfaces intended for traffic. Moreover, the tractor was not being used, in the circumstances of the main proceedings, as a vehicle but, on the contrary, as a machine. Compulsory insurance cover did not extend to such use, since it applied only to traffic accidents, that is to say, those that occur when a vehicle is being used in road traffic.

5. Mr Vnuk was granted leave to appeal on a point of law against the decision of the court at second instance before the referring court. Under Article 15 of the Law on compulsory motor vehicle liability insurance (Zakon o obveznih zavarovanjih v prometu, ‘the ZOZP’), ‘the owner of a vehicle must take out insurance covering liability for damage caused by the use of the vehicle to third parties resulting in death, physical injury, invalidity, damage to or loss of property (“insurance against civil liability in respect of the use of motor vehicles”) with the exception of liability for damage to property which the proprietor has agreed to transport’. Mr Vnuk therefore considers that the court at second instance’s reading of that provision is too narrow. The concept of ‘use’ does not relate only to the use of vehicles on public roads. Moreover, the tractor was not being used as a machine when the accident occurred, since a tractor drawing a trailer must be classified as a vehicle. The accident must therefore be covered by the compulsory insurance provided for by Article 15 of the ZOZP.

6. The defendant in the main proceedings considers, on the contrary, that the accident occurred in a work situation in front of a barn and did not happen either when the tractor was being used as a vehicle for use in traffic or, more specifically, in a road traffic situation. It also states that insurance premiums are calculated in accordance with a special scale which takes into account the specific risks of each category of vehicle. On that scale, tractors are known to represent a lower risk, because there are far fewer such vehicles in use on the road in traffic, and the insurance premiums are therefore lower. That would not be the case if situations such as that in the main proceedings also had to be covered by the compulsory insurance provided for in Article 15 of the ZOZP.

7. The referring court states, for its part, that the concept of ‘use of a vehicle’ is not defined by the national law and that that lacuna is, in specific cases, filled by the case-law. The national courts therefore consider, as a general rule, that the question whether the damage occurred in a public area and/or whether it was caused when the vehicle was stationary or had its engine off is not decisive. On the other hand, it is not considered that the compulsory insurance provided for in Article 15 of the ZOZP covers a situation in which a vehicle is used as a machine, for example when a tractor is operated as working machinery in a field.

8. Since the obligation to take out insurance against civil liability in respect of the use of motor vehicles has its origin in EU law, the referring court also observes that neither Directive 72/166, particularly Article 3(1) thereof, nor the subsequent directives, ( 3 ) define the concept of ‘use’. That concept may be understood either as meaning the use of motor vehicles in road traffic — in which case Mr Vnuk’s accident, since it was not caused by a vehicle and did not take place in traffic, did not occur in the context of a situation entailing the use of motor vehicles in traffic —, or as meaning the use and/or operation of the vehicle, irrespective of whether the accident occurred in a situation entailing the use of motor vehicles in traffic.

9. In those circumstances, the Vrhovno sodišče (Slovenia) decided to stay the proceedings and, by order for reference received at the Court on 29 March 2013, to refer the following question for a preliminary ruling pursuant to Article 267 TFEU: ‘Must the concept of “the use of vehicles” within the meaning of Article 3(1) of Directive [72/166] be interpreted as not extending to the circumstances of the present case, in which the person insured by the defendant struck the applicant’s ladder with a tractor towing a trailer while hay was being stored in a hayloft, on the basis that the incident did not occur in the context of a road traffic accident?’

II – Procedure before the Court

10. The German and Irish Governments and the European Commission have submitted written observations before the Court.

III – Legal analysis

11. Before going to the crux of the matter, I wish to point out that, apart from the fact that the facts in the main proceedings are a priori anecdotal, this case is much more complex than it appears. It reveals a lacuna in EU law which it is for the Court to fill today in a particularly protean area, since the possible examples of accidents caused by or through the use of a vehicle are capable of being very varied. Consequently, it would be advisable for the Court to adopt a position which may contribute to the resolution of the dispute of the main proceedings by concentrating on the specific features of the present case, without seeking to provide a definitive interpretation of the concept of ‘use’.

12. The particular caution which I advocate is dictated only by our inability to encase in a single definition what may be an accident which has occurred in a road traffic situation or which has resulted from the use of a motor vehicle, because the field is particularly varied. It must be clear that it is not dictated by the concern expressed by the defendant in connection with the main proceedings, which — unsurprisingly, all in all, for an insurance company — pleads the financial risk to which insurers and therefore, eventually, the consumer, would be exposed if the Court were to find that the type of accident which gave rise to the main proceedings is covered by insurance against civil liability in respect of the use of motor vehicles.

13. The single question posed by the referring court raises, in fact, a dual problem. First, in the light of the hearings held before the various national courts which have had to examine the case in the main proceedings, it may be helpful to confirm quickly, first of all, that a tractor may be regarded as a vehicle, within the meaning of Article 1(1) of Directive 72/166. Second, it will be necessary to determine whether the damage suffered by Mr Vnuk is the result either of the tractor being driven in traffic as a vehicle or of its being used and whether the accident of which he was the victim falls, on that basis, within the scope of the obligation to take out insurance against civil liability laid down in Article 3(1) of Directive 72/166.

A – The tractor which caused the accident must be classified as a ‘vehicle’ within the meaning of Article 1(1) of Directive 72/166

14. Under Article 1(1) of Directive 72/166, the directive applies to ‘any motor vehicle intended for travel on land and propelled by mechanical power, but not running on rails, and any trailer, whether or not...