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European Business Law

The provisions of Section 3 of Chapter II of Regulation No 1215/2012, which afford the insured a wider range of jurisdiction than that available to the insurer, have had as their purpose to “protect the insured who is most frequently faced with a predetermined contract the clauses of which are no longer negotiable” . In order to justify the application of those special rules of jurisdiction, the a …

Insurance

The provisions of Section 3 of Chapter II of Regulation No 1215/2012, which afford the insured a wider range of jurisdiction than that available to the insurer, have had as their purpose to “protect the insured who is most frequently faced with a predetermined contract the clauses of which are no longer negotiable” . In order to justify the application of those special rules of jurisdiction, the action before the court must necessarily raise a question relating to rights and obligations arising out of an insurance relationship between the parties to that action. This is not the case for a claim brought by an injured party against the policyholder or the insured .

Where the defendant is the insured, Article 14 of the regulation gives jurisdiction to the courts of the Member State in which the insured is domiciled. By contrast, where the defendant is the insurer, the “actor sequitur forum rei” rule still applies, but the plaintiff is recognized jurisdiction options. 

Article 11(1) makes it possible, in particular, to sue the insurer in the courts of the Member State where he is domiciled  or in the courts for the place where the plaintiff is domiciled . In respect of liability insurance, insurance of immovable property or insurance of movable and immovable property covered by a same insurance and affected by the same contingency, the insured may, under Article 12, sue the insurer in the courts for the place where the harmful event occurred. The insured also enjoys facultative jurisdiction rules, copied on the derived jurisdiction in Article 8, in case there are several defendants , in case of counter-claim , or in case of junction in proceedings . By referring to Articles 10, 11 and 12, Article 13 affords the victim the jurisdiction options allowed by these provisions, in case of direct action against the insurer, provided that the law of the court seized permits such an action . Thus, the employer to which the rights of its employee have passed in order to be reimbursed for the salary paid to the latter during a period of incapacity to work, which, solely in that capacity, has brought an action for damages may be regarded as weaker than the insurer that it sues and, therefore, is able to benefit from the possibility to bring that action before the courts of the Member State in which it is established .

The jurisdiction rules set forth in matters of insurance are strictly interpreted and are not applicable to proceedings between well-informed professionals , such as an insurer suing another insurer in the context of third-party proceedings , or a reinsurer bringing proceedings against the reinsured person in connection with a reinsurance contract  or a natural person, whose professional activity consists in recovering claims for damages from insurers and who relies on a contract for the assignment of a claim concluded with the victim of a road accident , as well as to disputes relating to insurance contracts in which the insured enjoys considerable economic power . On the other hand, the lex specialis system applies to the relationship between insured-reinsurer where, under the law of a Member State, the policy-holder, the insured person or the beneficiary of an insurance contract has the option to approach directly any reinsurer of the insurer to assert his rights under the contract . 

In principle, one cannot depart from the jurisdiction rules in matters relating to insurance by jurisdiction clauses included in the contract . However, the principle has five exceptions listed in Article 15 of the regulation . The prorogation of jurisdiction by contract is authorized where it follows a dispute between the insurer and the weakest party, which should be more careful in such a context, or if it is in favor of the insured in the broader sense, i.e. included the policy-holder or the beneficiary of the insurance, by making other jurisdiction options available to them. The clause conferring jurisdiction which provides, in the event that the harmful event were to occur abroad, that the insurer's action is brought before the courts of the Member State in which the insurer and the weakest party are domiciled, shall also be lawful if the law of that State so allows (Article 15(3)). In this respect, a clause which complies with Article 15(3) is not enforceable as against an insured beneficiary domiciled in a Member State other than the State where the insurance holder and the insurer are domiciled . The regulation also authorizes the insertion of clauses conferring jurisdiction in insurance contracts relating to large industrial and commercial exposures in which the insured benefits from such an economic power than he cannot be considered to be in a weaker position than the insurer (Article 15(5)) . Clauses conferring jurisdiction authorized by derogation must comply with the conditions as to form laid down in Article 25 of the regulation on the prorogation by contract in general . 

Case 201/82 Gerling Konzern Speziale Kreditversicherung AG and others v Amministrazione del Tesoro dello Stato [1983] ECR 2503, LawLex200900001653JBJ. 

Case C-708/20 BT, Judgment of 9 December 202, LawLex202100006229JBJ, finding that such a claim cannot constitute an insurance claim merely because that claim and the claim brought directly against the insurer arise out of the same facts or because there is a dispute between the injured party and the insurer as to the validity or effect of the insurance policy.

Case C-77/04 GIE Réunion européenne and others [2005] ECR I-4509, LawLex200900001175JBJ.

Case C-412/98 Group Josi [2000] ECR I-5925, LawLex200700001646JBJ. 

Case C-106/17 Pawel Hofsoe, Judgment of 31 January 2018, LawLex201800000204JBJ.

Case C-77/04 GIE Réunion européenne and others [2005] ECR I-4509, LawLex200900001175JBJ. Concretely, are excluded from the protective system of the rules in Section 3 of the regulation, insurance taken out by large maritime and air companies covering large exposures, within the meaning of the directive on direct insurance other than life insurance. 

Case C-412/98 Group Josi [2000] ECR I-5925, LawLex200700001646JBJ: in this case, the plaintiff is in a weaker position than the professional reinsurer.

Article 25 on prorogation by contract in general deems as having 'no legal effect' clauses which are contrary to Article 15.

The prohibition in principle of jurisdiction clauses (to the detriment of the insurer), laid down in Article 15, and the framing of prorogation by contract in matters relating to insurance (but also contract of employment or consumer contract), laid down in Recital 19 of the regulation, are justified by the will to protect the economically weaker person.

Case C-112/03 Société financière et industrielle du Peloux [2005] ECR I-3707, LawLex200900000382JBJ: a jurisdiction clause conforming with Article [15(3)] cannot be accepted against a third party beneficiary domiciled in a Member State other than the State of the policy-holder and the insurer, insofar as it would amount to the acceptance of a conferral of jurisdiction for the benefit of the insurer, prohibited as a principle, and to disregarding the aim of protecting the economically weakest party, which the regulation seeks to ensure, by depriving the beneficiary of the opportunity to bring proceedings before the court of the place where the harmful event occurred and to bring proceedings before the court of his own domicile). However, enforcing a jurisdiction clause conforming with Article [15(3)] against a third party beneficiary is not contrary to the regulation where it does not undermine the aim of protecting the economically weakest party. See Comp., Case 201/82 Gerling Konzern Speziale Kreditversicherung AG and others v Amministrazione del Tesoro dello Stato [1983] ECR 2503, LawLex200900001653JBJ, in which the possibility for a third party to the insurance contract to rely on such a clause against the insurer was recognized instead of the possibility for the insurer to rely on a prorogation by contract against that third party beneficiary. 

Concretely, this is the case of insurance taken out by large maritime or air companies and contracts covering large exposures, within the meaning of Directive No 73/239 on direct insurance other than life insurance, as amended by Directives No 88/537 and 90/618.

Case 201/82 Gerling Konzern Speziale Kreditversicherung AG and others v Amministrazione del Tesoro dello Stato [1983] ECR 2503, LawLex200900001653JBJ: a clause conferring jurisdiction inserted for the benefit of the insured who is not party to the insurance contract and is separate from the policy-holder, is enforceable as against the insurer, provided that the condition as to writing laid down in Article [25] of the regulation has been satisfied as between the insurer and the policy-holder and provided that the consent of the insurer in that respect has been clearly and precisely manifested.

Article 10 pursuant to which "[In]matters relating to insurance, jurisdiction shall be determined by this Section, without prejudice to [...] point 5 of Article 7", makes it possible by reference to that provision to sue the insurer who is domiciled in a Member State, but has another establishment in another Member State, in the latter before the court where that establishment has its seat. 

Article 11(2) however sets forth that where the insurer has not his domicile in the European Union, but has another establishment in a Member State, his domicile is deemed to be in that Member State.

Article 11(1)(c) provides that the insurer who is domiciled in a Member State may be sued in another Member State, if he is a co-insurer, in the courts of the Member State in which proceedings are brought against the leading insurer.

Article 14(2) provides for the possibility for the plaintiff to bring a counter-claim in the court in which the original claim is pending pursuant to the jurisdiction rule of that section.

Pursuant to Article 13(1), in respect of liability insurance, the insurer may be joined in proceedings which the insured has brought against the insurer, if the law of the courts so permits.

Case C-463/06 FBTO Schadeverzekeringen [2007] ECR I-11321, LawLex200800000717JBJ: reference in Article [13(2)] to Article [11(1)(b)] allows the injured person to bring an action directly against the insurer domiciled in another Member State, before the court of the place where the injured party is domiciled, where a direct action is possible. By contrast, reference in Article [13(2)] to Article [11(1)(b)] cannot be afforded to a social security institution, to which the claims of the directly injured party have passed by operation of law, since it cannot be deemed to be an economically weaker party and less experienced legally than a civil liability insurer, see Case C-347/08 Vorarlberger Gebietskrankenkasse [2009] ECR I-8661, LawLex201100000397JBJ. In this case, the Court has however considered that the statutory assignee of the rights of a directly injured party - such as his heir -, should be able to benefit from the jurisdiction rules defined in said provisions, provided that he might be considered as a weaker party. 

Case C-340/16 Landeskrankenanstalten-Betriebsgesellschaft - KABEG Judgment of 20 July 2017, LawLex201700001381JBJ: the notion of the "weaker party" has a wider acceptance in matters relating to insurance than those relating to consumer contracts or individual employment contracts and therefore pursuant to Article 13(2) of Regulation No1215/2012, employers to which the rights of their employees to compensation have passed may, as persons which have suffered damage and whatever their size and legal form, rely on the rules of special jurisdiction laid down in Articles 10 to 12 of that regulation.

Case C-106/17 Pawel Hofsoe, Judgment of 31 January 2018, LawLex201800000204JBJ: No special protection is justified where the parties concerned are professionals in the insurance sector, neither of whom may be presumed to be in a weaker position than the other, as the fact that a professional carries out his business on a small scale cannot lead to the conclusion that he is deemed to be a weaker party than the insurer.

European Business Law

348. Insurance

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Les décisions de justice citées dans ce paragraphe :

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348. Insurance

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise