Provisional text
OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 27 June 2024 (1)
Case C‑236/23
Mutuelle assurance des travailleurs mutualistes (Matmut)
v
TN,
Société MAAF assurances,
Fonds de garantie des assurances obligatoires de dommages (FGAO),
PQ
(Request for a preliminary ruling from the Cour de cassation (Court of Cassation, France))
(Reference for a preliminary ruling – Directive 2009/103/EC – Insurance against civil liability in respect of motor vehicles – Scope of the guarantee in favour of third parties provided by the compulsory insurance – National legislation stating that the nullity of an insurance contract is enforceable against a passenger who is a victim where that nullity has its basis in an intentional false statement by that person when the contract was concluded)
I. Introduction
1. The reference for a preliminary ruling in the present case follows on from the judgment in Fidelidade-Companhia de Seguros, (2) by which the Court explained that the directives relating to insurance against civil liability in respect of motor vehicles preclude national legislation which would have the effect of rendering the nullity of a contract of insurance against civil liability in respect of motor vehicles arising as a result of false statements made by the policyholder concerning the identity of the owner and the usual driver of the vehicle involved in a road traffic accident enforceable against third-party victims.
2. In the present case, the referring court seeks to ascertain whether the same interpretation should be adopted in the situation in which the passenger, who is a victim and against whom the nullity of the insurance contract is invoked, had, as the policyholder, made such initial false statements. If so, the question also arises as to whether, despite the fact that the nullity of the contract is unenforceable against a third-party victim, the insurer may bring an action against that person to obtain reimbursement of the sums paid in performance of the insurance contract.
II. Legal context
A. European Union law
3. Point 2 of Article 1 of Directive 2009/103/EC (3) defines ‘injured party’ and ‘party injured’ as ‘any person entitled to compensation in respect of any loss or injury caused by vehicles’.
4. Article 3 of that directive 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.’
5. Article 12(1) of that directive provides:
‘Without prejudice to the second subparagraph of Article 13(1), the insurance referred to in Article 3 shall cover liability for personal injuries to all passengers, other than the driver, arising out of the use of a vehicle.’
6. Under Article 13 of the same directive:
‘1. Each Member State shall take all appropriate measures to ensure that any statutory provision or any contractual clause contained in an insurance policy issued in accordance with Article 3 shall be deemed to be void in respect of claims by third parties who have been victims of an accident where that statutory provision or contractual clause excludes from insurance the use or driving of vehicles by:
(a) persons who do not have express or implied authorisation to do so;
(b) persons who do not hold a licence permitting them to drive the vehicle concerned;
(c) persons who are in breach of the statutory technical requirements concerning the condition and safety of the vehicle concerned.
However, the provision or clause referred to in point (a) of the first subparagraph 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 provide that the body specified in Article 10(1) is to 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 any body in that Member State.
Member States which, in the case of vehicles stolen or obtained by violence, provide that the body referred to in Article 10(1) is to pay compensation may fix in respect of damage to property an excess of not more than EUR 250 to be borne by the victim.
3. Member States shall take the necessary measures to ensure that any statutory provision or any contractual clause contained in an insurance policy which excludes a passenger from such cover on the basis that he knew or should have known that the driver of the vehicle was under the influence of alcohol or of any other intoxicating agent at the time of an accident, shall be deemed to be void in respect of the claims of such passenger.’
B. French law
7. Under Article L. 113-8 of the code des assurances (French Insurance Code), an insurance contract is to be null and void in the event of an intentional omission or false statement by the insured person where that omission or false statement changes the subject matter of the risk or reduces its extent in the insurer’s opinion, even if the risk omitted or misrepresented by the insured person had no bearing on the accident.
III. The facts of the dispute in the main proceedings, the question referred for a preliminary ruling and the procedure before the Court
8. On 5 October 2012, PQ took out a motor insurance contract with the company Mutuelle assurance des travailleurs mutualistes (Matmut). In concluding that contract, PQ stated that he was the only driver of the insured vehicle.
9. On 28 September 2013, that vehicle, which was being driven by TN, who was under the influence of alcohol, was involved in a road traffic accident with another vehicle insured by Mutuelle d’assurance des artisans de France (MAAF). PQ, who was a passenger in the first vehicle, was injured in that accident.
10. Prosecuted before a criminal court (France), TN was found guilty, inter alia, of causing unintentional physical injuries to PQ resulting in a period of incapacity of more than three months by driving a motorised road vehicle whilst under the influence of alcohol.
11. PQ made claims for civil damages. In the course of a hearing in criminal proceedings, Matmut relied, in relation to those claims, on the objection of nullity of contract on the ground of PQ’s false statement concerning the identity of the usual driver of the vehicle concerned. Matmut requested that it be exonerated and that liability for PQ’s damages be assumed by the Fonds de garantie des assurances obligatoires de dommages (the Mandatory Third-Party Liability Insurance Guarantee Fund; FGAO), the body responsible for paying compensation, inter alia, to victims of road traffic accidents where the person responsible is not insured.
12. By judgment of 17 December 2018, the criminal court ruled that the contract was null and void on account of an intentional false statement made by the insured person. It exonerated Matmut, ordered TN to pay compensation to the victims and declared the judgment to be enforceable against the FGAO. (4)
13. TN, the FGAO and MAAF lodged appeals against that judgment before a court of appeal (France), which upheld the judgment in so far as it had ruled that the insurance contract between PQ and Matmut was null and void.
14. The court of appeal found that, when PQ took out the insurance contract, TN was the owner of the vehicle concerned and its usual driver. It held that PQ had thus made an intentional false statement concerning the identity of the usual driver, which had manifestly changed the insurer’s opinion of the risk, given that TN had previously been convicted of drink-driving.
15. However, unlike the criminal court, the court of appeal found that Matmut could be held liable and therefore exonerated the FGAO. According to the latter court, given the precedence of EU law over national law, the nullity of the insurance contract on account of an intentional false statement, as provided for in Article L. 113-8 of the Insurance Code, is not enforceable against the victims of a road traffic accident or their successors. The fact that the victim was a passenger in the vehicle which caused the accident, the policyholder or the owner of that vehicle could not deny him the status of a ‘third-party victim’.
16. Matmut lodged an appeal on a point of law before the Criminal Chamber of the Cour de cassation (Court of Cassation, France) against the judgment of the court of appeal, on the ground that, contrary to Articles L. 113-8 and R. 211-13 of the Insurance Code, (5) the court of appeal had wrongly found that the nullity of the insurance contract was not enforceable against PQ.
17. Considering that the examination of that appeal on a point of law required the opinion of the chamber specialised in insurance law, the Criminal Chamber asked that specialised chamber about the enforceability of the nullity of an insurance contract arising from an intentional false declaration against a victim who was a passenger in the vehicle which caused the accident and is the insured person.
18. Seised of that question, the Second Civil Chamber of the Cour de cassation (Court of Cassation), the referring court, explains in detail the position under French law as regards the enforceability of the nullity of an insurance contract against persons injured in an accident in respect of which an insurer may be held liable. It thus follows from the case-law of the Cour de cassation (Court of Cassation) that the bad faith of the policyholder, who is penalised by the nullity of the insurance contract, is characterised by his or her intention to deceive the insurer. It is irrelevant whether that false statement had any bearing on the accident. In addition, the nullity affects the insurance contract retroactively, and therefore that contract is deemed never to have existed.
19. The Cour de cassation (Court of Cassation) also considers, as a general rule, that the nullity of a contract arising from a false statement made by the insured person could be relied on against the victim, since the insurer which denied that victim’s warranty claim had duly directed a claim against the FGAO.
20. Since its judgment of 29 August 2019, (6) that court has held that the nullity of an insurance contract, as provided for in the Insurance Code, is unenforceable against the victims of a road traffic accident or their successors and that the FGAO cannot be required to compensate the victims in such a case. That reversal of case-law followed from the interpretation of those provisions in the light of the directives relating to insurance.
21. The referring court adds that the French legislature then inserted Article L. 211-7-1 into the Insurance Code in order to bring that code into line with EU law. It explains that, under that provision, the nullity of an insurance contract is unenforceable against the victims of a road traffic accident or their successors, and that the insurer covering the civil liability for the vehicle involved is required to pay compensation to them. That provision states that the insurer is subrogated to the rights of the person entitled to compensation against the person responsible for the accident, up to the amount of the sums that it has paid.
22. The same provision, which is now in force, does not appear to be applicable ratione temporis to the facts of the dispute in the main proceedings, that is to say, the conclusion of the contract and the accident, which took place in 2012 and 2013 respectively.
23. That being said, the referring court states that, since the development of its case-law following the judgment of 29 August 2019 and the entry into force of Article L. 211-7-1 of the Insurance Code, the Cour de cassation (Court of Cassation) has yet to rule on whether the nullity of an insurance contract is unenforceable against a victim, who was a passenger in the vehicle, where that person is also the policyholder and the person who made the intentional false statement which rendered the insurance contract null and void. The referring court states that none of the judgments given by the Court of Justice concerns a situation such as that at issue in the case in the main proceedings.
24. It is in those circumstances that the Cour de cassation (Court of Cassation) decided, by decision of 30 March 2023, received at the Court on 7 April 2023, to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:
‘Must Articles 3 and 13 of Directive [2009/103] be interpreted as precluding the nullity of a contract for civil liability motor insurance from being declared enforceable against a passenger who is a victim where that person is also the policyholder and intentionally made a false statement at the time of conclusion of the contract which gave rise to that nullity?’
25. Written observations were lodged before the Court by Matmut, TN, MAAF, the FGAO, PQ, the French Government and the Commission. The Court decided not to hold a hearing in the present case.
IV. Analysis
A. The scope of the question referred for a preliminary ruling and its reformulation
26. By its sole question referred for a preliminary ruling, the referring court asks, in essence, whether EU law precludes the nullity of an insurance contract from being enforced against a passenger, who is a victim, where that person is also the policyholder whose misleading statements gave rise to that nullity.
27. It is, however, apparent from this request for a preliminary ruling that that referring court also has doubts, in the event that the nullity of the insurance contract were declared unenforceable against the victim and policyholder, as to whether the insurer might be permitted to bring against that person an action based on his wilful misconduct when concluding the contract in order to recover all of the sums paid in performance of that contract.
28. I note that the request for a preliminary ruling does not state whether Matmut has brought such an action in the context of the main proceedings or even whether such an action may be brought in the context of proceedings such as the main proceedings.
29. In that regard, it should be recalled, in the first place, that there is a presumption of relevance in favour of questions on the interpretation of EU law. The Court may decline to rule on a request for a preliminary ruling from a national court only where it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or to its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (7)
30. In the second place, according to settled case-law, (8) in the procedure for cooperation between national courts and the Court of Justice provided for in Article 267 TFEU, it is for the latter to provide the referring court with an answer which will be of use to it and to enable it to decide the case before it. With that in mind, the Court may have to reformulate the questions referred to it. The fact that a national court has, formally speaking, worded a question referred for a preliminary ruling with reference to certain provisions of EU law does not prevent the Court from providing the national court with all the points of interpretation which may be of assistance in adjudicating on the case pending before it, whether or not that court has referred to them in its questions. In that regard, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision referring the questions, the points of EU law which require interpretation, having regard to the subject matter of the dispute.
31. Accordingly, in the performance of its role in relation to preliminary rulings, the Court may be prompted to reformulate the questions referred for a preliminary ruling in respect of which, even after their reformulation in accordance with the case-law recalled in point 29 of this Opinion, there is still a presumption of relevance. (9)
32. Here, despite a lack of information in the request for a preliminary ruling as regards whether an insurer may bring an action against a victim and policyholder, it is not quite obvious that the question of the compatibility of bringing such an action with EU law is unrelated to the actual facts of the main action or to its purpose, or concerns a hypothetical problem. Even though the main proceedings concern the criminal liability of the person who caused an accident, the claims for civil damages are, nevertheless, examined in the context of those proceedings. Furthermore, as is illustrated by the parties’ written observations, in which that issue is discussed at length, this reference for a preliminary ruling contains all the material necessary for a useful answer to be given to the question regarding the compatibility of such an action.
33. In those circumstances, I propose that the Court reformulate the question referred for a preliminary ruling such that, by that question, the referring court seeks to ascertain, in the first place, whether Articles 3 and 13 of Directive 2009/103 are to be interpreted as precluding national legislation which allows the nullity of a contract of insurance against civil liability in respect of motor vehicles arising from an intentional false statement made by the policyholder as regards the usual driver of the vehicle concerned to be enforced against a passenger and victim where that person is also the policyholder.
34. In accordance with my proposed rewording, the referring court seeks to ascertain, if that question is answered in the affirmative, in the second place, whether those provisions must be interpreted as also precluding national legislation which authorises the insurer to bring an action against the passenger and victim, where that person is also the policyholder, based on the intentional false statement made by that person as regards the usual driver of the vehicle concerned, in order to recover all sums paid to that passenger and victim in performance of that contract.
B. The enforceability of the nullity of an insurance contract
35. The legal conditions of validity of an insurance contract are governed not by EU law but by the laws of the Member States. (10) The Member States are nonetheless obliged to ensure that compulsory motor vehicle insurance allows all passengers who are victims of an accident caused by a motor vehicle to be compensated for the injury or loss they have suffered. It is also apparent from the Court’s case-law that the Member States must exercise their powers in that field in a way that is consistent with EU law and that the provisions of national legislation which govern compensation for road traffic accidents may not deprive Directive 2009/103 of its effectiveness. (11)
36. Thus, in order to answer the first part of the question referred for a preliminary ruling, it is necessary, in the first place, to determine whether a passenger who is a victim and also the policyholder and the person who made the false statements when the insurance contract was concluded is included amongst the persons whom Directive 2009/103 seeks to protect. Only if that is the case can the enforceability of the nullity of the insurance contract against that passenger and victim deprive that person of his or her right to compensation and, therefore, undermine the effectiveness of that directive. Thus, as appropriate, I will examine, in the second place, whether the enforceability of such nullity against the person concerned undermines that directive and its effectiveness.
1. The protection of third-party victims
(a) The general rule on the protection of victims
37. Directive 2009/103 seeks to guarantee, inter alia, that the victims of accidents caused by vehicles will receive comparable treatment irrespective of where in the European Union the accidents occurred, as well as to ensure the protection of victims of accidents caused by motor vehicles. (12) The provisions of that directive are the result of a development in the EU legislation on compulsory insurance, which has continuously pursued and reinforced the objective of protecting the victims of accidents caused by those vehicles. (13)
38. In that regard, as is apparent from recital 1 of Directive 2009/103, that directive codified the earlier directives on the approximation of the laws of the Member States 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, without amending their substance. Accordingly, the case-law relating to those earlier directives can be applied to the interpretation of the equivalent provisions of Directive 2009/103. (14)
39. In order to achieve the objective of the ‘comparable’ protection of victims within the European Union, Directive 2009/103 lays down the general rule that injured persons are entitled to be compensated by the insurer as well as exceptions to that rule. Viewed from that perspective, those exceptions are exhaustive in nature and are to be interpreted strictly. (15)
40. In that regard, it follows from a combined reading of point 2 of Article 1 and the first paragraph of Article 3 of Directive 2009/103 that the protection which must be guaranteed under that directive extends to anyone who is entitled, under national civil liability law, to compensation for damage caused by motor vehicles. (16)
41. More specifically, Article 3 of Directive 2009/103 requires Member States to ensure that civil liability in respect of the use of vehicles normally based in their territory is covered by insurance, and specifies, inter alia, the types of loss or injury and the third-party victims which that insurance must cover. With regard to the rights afforded to third-party victims, the first paragraph of Article 3 of that directive precludes a company insuring against civil liability in respect of the use of motor vehicles from relying on statutory provisions or contractual clauses in order to refuse to compensate third-party victims for an accident caused by the insured vehicle. Article 13(1) of that directive simply repeats that obligation, with respect to certain specific situations set out in that provision. (17)
42. It is in the light of those observations that it is necessary to determine whether, in the present case, the passenger and victim, who is also the policyholder and the person who made the false statements, numbers amongst the ‘third-party victims’ which Directive 2009/103 seeks to protect.
(b) The passenger as an injured person
43. Compulsory insurance against civil liability in respect of the use of vehicles, which comes under the framework of Directive 2009/103, covers, inter alia, as required by Article 12(1) of that directive, personal injuries to all passengers, other than the driver, arising out of the use of a vehicle.
44. The Court has already clarified that the objective of the provisions of the earlier directives corresponding to those of Directive 2009/103 was to ensure, subject to the exceptions laid down in those directives, that compulsory motor vehicle insurance allows all passengers who are victims of an accident caused by a motor vehicle to be compensated for the injury or loss they have suffered. (18)
45. It is true that an exception which can affect the situation of passengers other than the driver is provided for in Article 13(1)(a) of Directive 2009/103. Pursuant to that provision, a Member State may decide to make an exclusion clause (whether contractual or legislative) enforceable against persons who got into the vehicle of their own volition, where the insurer can prove that they knew that that vehicle was stolen. It is, however, established that that was not the case here.
46. Thus, as regards compulsory insurance within the framework of Directive 2009/103, the fact that an injured person was the passenger in a vehicle which caused him or her injury cannot deprive that person of his or her right to be compensated for the damage caused by a road traffic accident.
(c) The policyholder as an injured person
47. In the present case, it is one of the parties to the insurance contract, namely the policyholder, who is claiming to be a ‘victim of an accident’ in order to receive compensation from the insurance company.
48. In that regard, as I have noted, (19) in order to determine who benefits from the protection under EU law, both Directive 2009/103 and the Court’s case-law use the concept of ‘third-party victims’. The use of that concept may suggest that the protection afforded by that directive applies only to those persons who are not in a contractual relationship (‘third parties’) with the insurer, who may be held liable.
49. However, in the first place, the concept of ‘third-party victims’ can be found only in Article 13 of Directive 2009/103. That provision, entitled ‘Exclusion clauses’, requires Member States to take all appropriate measures to ensure that, ‘in accordance with Article 3’ of that directive, any statutory provision or contractual clause which excludes from insurance the use or driving of vehicles in certain specific situations detailed in that first provision is to be deemed to be void in respect of claims by third parties injured as a result of an accident.
50. Recital 15 of Directive 2009/103 clarifies the objective of Article 13 of that directive and states that, in the interest of victims, the effects of certain exclusion clauses should be limited to the relationship between the insurer and the person responsible for the accident. A contrario, according to that recital, pursuant to Article 13 of the Directive and subject to the exceptions laid down therein, such exclusion clauses (of a legislative or contractual nature) are, therefore, void as regards the relationship between the insurer and any injured person other than the person responsible for the accident. Consequently, in accordance with that recital, the reference to ‘third parties who have been victims of an accident’ contained in that provision should be understood to mean that that term covers the victims of a road traffic accident other than the person who caused that accident. Thus, more generally, the concept of ‘third-party victims’ for the purposes of that provision can also cover those persons in a contractual relationship with the insurer.
51. In the second place, such a reading of Directive 2009/103 mirrors that of Advocate General Mengozzi who, in his Opinion in Churchill Insurance Company and Evans, proposed that the Court hold that, when an accident occurs, all persons other than the driver who caused it are to be regarded as ‘third parties’. (20)
52. In the third place, the Court has already clarified that the fact that the person injured in a road traffic accident is the policyholder does not permit the exclusion of that person from the concept of ‘third-party victims’, for the purposes of the provisions of the directives preceding Directive 2009/103, which correspond to Article 12(3) and Article 13(1) of that directive. (21)
53. Thus, the fact that the passenger and victim is the policyholder likewise does not mean that he or she can be excluded from the protection afforded by Directive 2009/103 to the victims of road traffic accidents.
(d) The person who made the false statements as an injured person
54. The point of difference in the present case lies in the fact that the person concerned is not only the passenger who was a victim of the road traffic accident and who entered into a contractual relationship with the insurer whose liability is at issue, but also the person who made the intentional false statement which resulted in the nullity of the insurance contract.
55. As I have observed, (22) Directive 2009/103 contains an exception which allows victims not to be compensated in view of the situation which they themselves created, namely persons who got into the vehicle which caused the damage of their own volition, where the insurance company can prove that they knew that that vehicle had been stolen. However, that directive does not provide for such an exception where the insurance contract was concluded on the basis of false statements made by the policyholder.
56. Accordingly, as the Court has held, (23) the fact that the insurance company concluded that contract on the basis of omissions or false statements on the part of the policyholder does not enable the company to rely on statutory provisions regarding the nullity of the contract or to invoke that nullity against a third-party victim so as to be released from its obligation to compensate that victim for an accident caused by the insured vehicle. In other words, from the point of view of Directive 2009/103, the fact that the passenger and victim is the policyholder who made such false statements when concluding the insurance contract has no effect on his or her status as a ‘third-party victim’ for the purposes of that directive or on the protection afforded to persons with that status.
57. It is now necessary to determine whether that finding is called into question by an argument based on the principle of prohibition of fraud and abuse. In its written observations, Matmut argues that, from the perspective of that principle, a person who has made false statements cannot be allowed to rely on insurance and thus benefit from his or her fraud.
(e) The principle of prohibition of fraud and abuse
(1) Summary of the issue
58. Directive 2009/103 does not govern the question of the abuse, by the policyholder, of the rights afforded to him or her by that directive. However, there is, in EU law, a general principle that the application of the rules of EU law cannot be extended to cover abusive or fraudulent transactions. In addition, it appears to me that the application of that principle in the context of the enforceability of the nullity of an insurance contract was also considered by the Court in the recent order in Liberty Seguros.
59. The question referred for a preliminary ruling which the Court analysed in that order had its origin in proceedings brought by the insurer for a declaration of the nullity of an insurance contract on account of false statements made by the policyholder regarding the activities carried out with the vehicle concerned. The court before which those proceedings had been brought had to rule on whether that nullity could be relied on against third parties who were victims of a road traffic accident.
60. The Court answered in the negative and found, inter alia, that it cannot be argued that, in a situation in which the policyholder has concealed the real activities which he or she intended to carry out with the vehicle concerned and where the passengers must have been aware of the unlawful nature of the service provided by the policyholder, EU law is relied upon with the aim of circumventing national law in order to derive an advantage from national law which runs counter to the objectives and the aims of EU law. (24)
61. In that passage, it appears that the Court wished to indicate that the situation at issue did not correspond to the two main contexts in which the concept of abuse may be analysed, that is to say, when EU law is invoked in order to evade national law and when provisions of EU law are relied upon to gain advantages in a manner which runs counter to the objectives and the aims of those same provisions. (25)
62. If, taking into account the context in which it appears, my reading of the passage above is correct, the situation in which the Court ruled corresponds to the second context, namely where EU law was relied upon by the persons injured in a road traffic accident who were seeking to rely on their status as ‘third-party victims’ so as not to be deprived, on account of the nullity of the insurance contract arising from the false statements made by the policyholder, of their right to compensation.
63. By contrast, in the present case, if Matmut’s line of reasoning is followed, it is the policyholder who is seeking to rely on his status as a ‘third-party victim’ to achieve the same objective. In such a situation, EU law and, more specifically, Articles 3 and 13 of Directive 2009/103, would be invoked in order to evade the application of a national provision on the nullity of an insurance contract which is otherwise enforceable against a person who has made false statements.
64. In those circumstances, it is for the national court to verify, in accordance with the rules of evidence of national law, provided the effectiveness of EU law is not undermined, whether the factors constituting an abusive or fraudulent practice are present in the case before it. (26) When giving preliminary rulings, the Court may, if appropriate, specify indicia in order to guide national courts in the assessment of the cases that they have to decide. (27) I will therefore make a few comments on the implementation of the principle of prohibition of fraud and abuse in the event that the Court were to decide to specify such indicia to the referring court.
(2) Comments on the implementation of the principle of prohibition of fraud and abuse
65. An objective element and a subjective element must be established in order to find that an abusive practice exists.
66. According to the Court’s case-law, (28) proof of an abusive practice requires, first, a combination of objective circumstances in which, despite formal observance of the conditions laid down by the EU rules, the purpose of those rules has not been achieved and, second, a subjective element consisting in the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it.
67. In my view, since, in the present case, the aim pursued by the EU rules appears a priori to be achieved, it appears to me expedient to begin by analysing not the objective element but the subjective element in order to determine what the intention of the person concerned was and to ascertain whether that intention constitutes abuse as well as whether, where appropriate, the desired outcome may undermine the objective laid down in EU law. (29)
68. The objective pursued by Articles 3 and 13 of Directive 2009/103 is to ensure that, subject to the exceptions provided for in that directive, any person injured in a road traffic accident is entitled to be compensated and to disapply national provisions and contractual clauses which may limit that entitlement.
69. It is established that PQ was injured during the accident at issue in the main proceedings and that, under the applicable law, he is entitled to compensation for the loss or injury suffered. In addition, there is nothing to indicate that that accident occurred in artificially created conditions or that, in the light of the fact that the driver is excluded from the persons covered by the insurance, (30) rather than driving the vehicle himself, PQ took the passenger seat in order to be eligible for compensation from the insurer in the event of an accident.
70. Moreover, it must be borne in mind that, by its argument, Matmut submits not that TN was driving the vehicle concerned when the accident occurred but that he was not identified as the usual driver of that vehicle when the insurance contract was concluded. In that regard, if PQ were the usual driver of the vehicle and TN occasionally drove it, the question of the nullity of the insurance contract would not arise. After all, Directive 2009/103 precludes the exclusion of the insurer’s obligation to compensate a victim of a road traffic accident involving an insured vehicle when that accident has been caused by a person who is not the person covered by the insurance policy. (31)
71. Thus, Matmut’s argument is concerned with the fact that PQ made a false statement when concluding the insurance contract and that he is seeking to have disapplied, not for the benefit of any victim but for his personal benefit, a national provision under which that insurance contract is null and void by virtue of that false statement.
72. In that regard, I note that the Court uses different forms of words to describe the subjective element of an abusive or fraudulent practice.
73. In some of its judgments, the Court states that the subjective element consists in the intention to obtain an advantage from the EU rules by artificially creating the conditions laid down for obtaining it, (32) whereas, in others, it observes that that element exists only where the essential aim of the practices concerned is simply to obtain such an advantage. (33)
74. In any event, it must be stated that, as far as concerns the evasion of national law by means of secondary law, the prohibition of such practices is not relevant where the transactions concerned may have some explanation other than the mere attainment of an undue advantage. (34)
75. Accordingly, it is necessary to examine whether the essential aim of the practice at issue by PQ was simply to evade national provisions which would otherwise apply. In that regard, when checking for an abusive practice, the referring court must take into account all the facts and circumstances of the case, including those preceding and following the transaction alleged to be abusive. (35)
76. As I understand the reference for a preliminary ruling, the false statements were made by PQ in order to comply with the obligation to insure the vehicle concerned and to benefit from a more advantageous insurance premium than that which would have been payable if the identity of the usual driver of that vehicle had been known to the insurer. It appears from the order for reference that the reason for making those false statements was to avoid stating that TN was the usual driver of the vehicle because he had been previously convicted of drink-driving. That fact manifestly altered the insurer’s opinion of the risk.
77. Therefore, subject to the determinations to be made by the referring court, the view cannot be taken that PQ made false statements with the essential aim of relying himself on Articles 3 and 13 of Directive 2009/103 and of evading a national provision on the legal conditions for the nullity of insurance contracts. In the light of the foregoing, and having regard to the provisions of that directive, PQ must be regarded as being a ‘third party who has been the victim’ of an accident.
78. With regard to those determinations, it should be added that the person accused of having engaged in fraudulent or abusive practices must be given the opportunity to rebut the evidence upon which that allegation is based, with due regard to the safeguards associated with the right to a fair trial. (36)
79. For the sake of completeness, the question could be raised whether Article L. 113-8 of the Insurance Code should not be regarded as a national provision by which the French legislature seeks to remedy fraudulent and abusive practices by policyholders. However, a national provision of that kind may be applied only where the conduct of the person concerned is in any case, in accordance with the general principle of EU law on the prohibition of fraud and abuse, regarded as being fraudulent or abusive. (37) The application of a national provision must not detract from the full effect and uniform application of Articles 3 and 13 of Directive 2009/103. (38) It cannot therefore alter the scope of those provisions, (39) which would be the case if the policyholder and the person who made the false statements were denied the status of ‘third-party victim’ for the purposes of those provisions.
80. In those circumstances, it remains to be determined whether the effectiveness of Articles 3 and 13 of Directive 2009/103 preclude the nullity of the insurance contract from being relied on against a third-party victim who is the policyholder and the person who made the false statements when that contract was concluded.
2. The effectiveness of Articles 3 and 13 of Directive 2009/103
(a) The enforceability of the nullity of the contract against a third-party victim
81. In the present case, the question arises whether an insurance company may refuse entitlement to compensation because the nullity of the insurance contract as a result of the false declarations by the policyholder is enforceable against that policyholder.
82. As I have noted, (40) the purpose of Directive 2009/103 is not to harmonise the legal conditions of validity of insurance contracts. Although the Member States remain free to determine those conditions, they must exercise their powers in a manner consistent with EU law, and the national provisions governing compensation for accidents resulting from the use of motor vehicles cannot deprive that directive of its effectiveness.
83. Thus, while Directive 2009/103 does not preclude a national provision which states that an insurance contract is null and void where it is concluded on the basis of false statements made by the policyholder, that directive does limit the effects of the nullity to the extent that it may undermine the effectiveness of that act of EU law.
84. In that regard, the enforceability of the nullity of an insurance contract against a passenger and victim who is the policyholder would mean that that person is not compensated and, therefore, would undermine the effectiveness of Directive 2009/103. That interpretation is not called into question by the possibility of that person being compensated by the FGAO.
(b) Intervention by the body responsible for the compensation of victims
85. The referring court expresses doubts as to whether the fact that the FGAO is required to compensate the victim if the nullity of the contract is declared to be enforceable against that victim is such as to influence the interpretation to be adopted.
86. In that regard, under Article 10 of Directive 2009/103, each Member State is required to ‘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’.
87. However, as the Court has clarified, (41) the finding that a national provision is liable to result in compensation not being paid to third-party victims and, consequently, in Directive 2009/103 being deprived of its effectiveness is not called into question by the fact that it is possible for the victim to receive compensation from a body set up in order to comply with Article 10 of that directive.
88. Provision was made for the intervention of such a body as a measure of last resort, solely in cases in which the damage and/or injury was caused by a vehicle for which the insurance obligation has not been satisfied. Insurance against civil liability in respect of the use of motor vehicles is compulsory and it is for the Member States to make sure that, subject to the derogations laid down in Directive 2009/103, any owner or keeper of a vehicle normally based in its territory concludes a contract with an insurance company. A Member State’s failure to comply with that monitoring obligation should not operate to the detriment of victims of road traffic accidents and, should it do so, the body set up or authorised by that Member State is to compensate the victims. However, the intervention by an authorised body cannot be relied upon to release the insurer from its liability where the obligation to conclude the insurance contract has been satisfied.
3. Conclusion in relation to the first part of the question referred
89. Further to my analysis above, it is my view, first of all, that the fact that the passenger and victim is the policyholder who made the false statements as to the identity of the usual driver when concluding the insurance contract in no way alters his status as a ‘third-party victim’ for the purposes of Directive 2009/103 or affects the protection afforded to persons with that status. (42) Next, in the circumstances of the present case, the view cannot be taken that he can be refused that protection by applying the principle of prohibition of fraud and abuse. (43) Lastly, that directive would be rendered ineffective if the insurer were to refuse that person the right to be compensated because the nullity of the insurance contract is enforceable as a result of those false statements. (44)
90. In those circumstances, the first part of the question referred for a preliminary ruling should be answered to the effect that Articles 3 and 13 of Directive 2009/103 must be interpreted as precluding national legislation under which the nullity of a contract of insurance against civil liability in respect of motor vehicles, as a result of an intentional false statement made by the policyholder as regards the usual driver of the vehicle concerned, is enforceable against a passenger and victim, where that person is also the policyholder.
C. The right to bring an action for recovery
91. As a reminder, the second part of the question referred for a preliminary ruling concerns whether Articles 3 and 13 of Directive 2009/103 are to be interpreted as likewise precluding national legislation which authorises the insurer to bring an action against the passenger and victim, where that person is also the policyholder, based on the intentional false statement made by the latter regarding the usual driver of the vehicle concerned, in order to recover all sums paid to that passenger and victim in performance of that contract.
92. To answer the second part of the question referred for a preliminary ruling, I will begin by examining whether the conditions for the policyholder to incur liability for the initial false statements are governed by EU law. If that is not the case, I will then consider whether EU law nevertheless precludes the liability of that policyholder from being incurred by means of an action for recovery brought by the insurer.
1. The conditions for the liability of the policyholder
93. Although the Court has not yet had occasion to rule on the compliance with EU law of the right of an insurer to bring an action for recovery against a passenger and victim where that person is also the policyholder and the person who made the false statements when the insurance contract was concluded, useful guidance in that regard can be found in case-law. (45)
94. An action for recovery brought against a person injured following an accident was at issue in the judgment in Churchill Insurance Company and Evans. (46)
95. That judgment concerned a provision of national law which allowed the insurer to recover from the insured the amount paid in respect of that insurer’s liability arising from the insurance contract. It is clear from reading the judgment that that provision was open to two different interpretations and that those interpretations had been the subject of debate between the parties.
96. According to the first interpretation, the national provision at issue provided for an action against the insured for recovery of that compensation when that insured had caused the accident or permitted the use of the vehicle by the driver who caused the accident. (47) Under the second interpretation, that provision had the effect of excluding automatically from the benefit of insurance a passenger, the victim of a road traffic accident, who was insured to drive the vehicle and who had given permission to an uninsured driver to drive. (48) The referring court adopted that second interpretation and, consequently, that interpretation is reflected in the judgment given by the Court.
97. Even more significantly, a reading of that judgment may suggest that a provision which automatically excludes the benefit of compensation possibly due to the insured (second interpretation) falls within the scope of Directive 2009/103, whereas a provision which affords the insurer the right to hold its contracting party civilly liable by an action for recovery (first interpretation) falls outside the scope of that directive.
98. Indeed, after stating that it was required to take account of the referring court’s interpretation of the national law, that is to say, the second interpretation, the Court stated that the questions referred for a preliminary ruling ‘[did] not concern the compatibility with EU law of a rule governing civil liability, but concern[ed] rather the compatibility with EU law of a provision which, according to the interpretation given by the referring court, by excluding automatically the benefit of compensation possibly due to an insured, limits the extent of civil liability insurance cover’. (49) The Court thus took the view that the questions submitted did indeed therefore fall within the scope of the related EU rules.
99. That reading of the judgment in Churchill Insurance Company and Evans (50) is supported by the order in BUL INS, (51) in which the Court stated that Article 13 of Directive 2009/103 is concerned with possible limitations on civil liability insurance cover in respect of the third-party victims of an accident, and not actions for recovery brought by the insurer after damages have been awarded to the injured person.
100. Thus, the conditions for the policyholder incurring liability vis-a-vis the amounts paid by the insurer following an accident are not governed by EU law. It remains to be determined whether the conditions for that person incurring such liability, to which the second part of the question referred for a preliminary ruling refers, are nevertheless capable of undermining the effectiveness of Directive 2009/103.
2. The effectiveness of Directive 2009/103 and actions for recovery
101. The referring court asks whether an insurer may bring an action against a policyholder in order to recover all sums paid to that policyholder in performance of the insurance contract.
102. Although the conditions for the policyholder incurring liability fall within the competence of the Member States, the latter must exercise their powers in that field in a manner consistent with EU law and without undermining the effectiveness of EU law.
103. In that regard, in its case-law on the effectiveness of Directive 2009/103, the Court draws a distinction between, on the one hand, the provisions on insurance which limit the cover against civil liability provided by the insurer in the relationship between a third-party victim and the insurer and, on the other hand, the provisions of the national civil liability rules which determine the insured’s liability in respect of such a third-party victim. (52) In principle, it is primarily the former provisions which are capable of undermining the effectiveness of that directive. (53) As a general rule, the liability of the insurer stems from the civil liability borne by the insured, and the Directive does not seek to harmonise the rules on such civil liability in the Member States.
104. Furthermore, in accordance with the same case-law, in order to ensure the effectiveness of provisions of EU law relating to compulsory insurance against civil liability in respect of the use of motor vehicles, those provisions must be interpreted as meaning that they preclude national legislation which undermines that effectiveness, in that, by automatically excluding or disproportionately limiting the victim’s right to compensation by compulsory insurance against civil liability in respect of the use of motor vehicles, it impedes the achievement of the objective of protecting victims of road traffic accidents, which has continuously been pursued and reinforced by the EU legislature. (54)
105. In the light of that case-law, it should be stated that national legislation which authorises the insurer to bring an action against a passenger and victim, where that person is also the policyholder and the person who made the false statements when the insurance contract was concluded, in order to obtain reimbursement of all sums paid to that passenger and victim in performance of the insurance contract, may affect that individual’s right to be compensated by compulsory insurance against civil liability in respect of motor vehicles and, therefore, undermine the effectiveness of Directive 2009/103.
106. Such national legislation has the effect of influencing the relationship between the third-party victim and the insurer, without influencing the civil liability of the insured who is directly responsible for the road traffic accident. The fact that that national legislation seeks to penalise the false statements made by the policyholder when concluding the insurance contract does not call that consideration into question. The fact that the passenger and victim is the policyholder who made the false statements as regards the identity of the usual driver when concluding the insurance contract has no effect on his or her status as a ‘third-party victim’ for the purposes of Directive 2009/103. (55)
107. In that regard, it is indeed true that, in the judgment in Ruiz Bernáldez, (56) the Court took the view that ‘[a compulsory insurance contract] may … provide that in such cases the insurer is to have a right of recovery against the insured’. However, that judgment cannot be understood to mean that EU law does not preclude the insurer from being able to bring an action for recovery against the person with whom it concluded the insurance contract where that person is also a third-party victim for the purposes of Directive 2009/103.
108. As the French Government observes, in the judgment in Ruiz Bernáldez (57) the insured was the driver of the vehicle and the person who caused the damage, and therefore the question of the risk of infringement of the victim’s right to compensation as a result of that action did not arise. Furthermore, the Court’s considerations concerned, more specifically, a clause in the insurance contract which allowed the insurer to claim against the insured with a view to recovering the sums paid to the victim of a road traffic accident caused by an intoxicated driver. (58) However, nothing in that judgment suggests that such an action for recovery can be brought, without any restriction of EU law, against the person compensated by the insurer. On the contrary, the Court stated that ‘a compulsory insurance contract may not provide that in certain cases, in particular where the driver of the vehicle was intoxicated, the insurer is not obliged to pay compensation for the damage to property and personal injuries caused to third parties by the insured vehicle’. (59)
109. Even more significantly, an action for recovery such as that mentioned in the second part of the question referred for a preliminary ruling disregards the need to ensure the proportionality of a measure intended to deprive a victim of the right to obtain compensation from the insurer.
110. As is apparent from the order for reference, the nullity of the contract is the result of the false statements which altered the insurer’s opinion of the risk and, therefore, the cost of the insurance, without this having an impact on the accident or the extent of the losses and injuries. In addition, if an action is brought to obtain reimbursement of all sums paid to the person concerned as compensation for the loss or injury suffered in a road traffic accident, under the guise of penalising the false statements made by the policyholder as regards the identity of the usual driver of the vehicle concerned, that action has the result, in practice, of depriving that person, definitively and disproportionately, of the protection afforded by Directive 2009/103 to the victims of such accidents.
111. In those circumstances, the second part of the question referred for a preliminary ruling should be answered to the effect that Articles 3 and 13 of Directive 2009/103 must be interpreted as likewise precluding national legislation which authorises the insurer to bring an action against the passenger and victim, where that person is also the policyholder, based on the intentional false statement made by him or her as regards the usual driver of the vehicle concerned, in order to recover all sums paid to that passenger and victim in performance of that contract.
V. Conclusion
112. In the light of all the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Cour de cassation (Court of Cassation, France) as follows:
Articles 3 and 13 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
must be interpreted as:
– precluding national legislation under which the nullity of a contract of insurance against civil liability in respect of motor vehicles, as a result of an intentional false statement made by the policyholder as regards the usual driver of the vehicle concerned, is enforceable against a passenger and victim, where that person is also the policyholder;
– likewise precluding national legislation which authorises the insurer to bring an action against the passenger and victim, where that person is also the policyholder, based on the intentional false statement made by him or her as regards the usual driver of the vehicle concerned, in order to recover all sums paid to that passenger and victim in performance of that contract.