CJEC, 1st chamber, July 24, 2003, No C-166/02

THE COURT (First Chamber),

1. By order of 26 April 2002, which was received at the Court on 2 May 2002, the Tribunal Judicial da Comarca de Alcácer do Sal (District Court, Alcácer do Sal) referred to the Court for a preliminary ruling under Article 234 EC a question on the interpretation of the Second Council Directive 84-5-EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (OJ 1984 L 8, p. 17, hereinafter 'the Second Directive').

2. That question was raised in proceedings between Mr Messejana Viegas, on the one hand, and Companhia de Seguros Zurich SA ('Zurich') and Mitsubishi Motors de Portugal SA ('Mitsubishi'), on the other, concerning compensation for injury suffered by him as the result of a road-traffic accident.

Community legislation

3. Article 3(1) of Council Directive 72-166-EEC of 24 April 1972 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 (OJ, English Special Edition 1972 (II), p. 360, hereinafter 'the First Directive') provides as follows:

'Each Member State shall ... 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.'

4. Article 1(1) and (2) of the Second Directive provides as follows:

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

2. Without prejudice to any higher guarantees which Member States may lay down, each Member State shall require that the amounts for which such insurance is compulsory are at least:

- in the case of personal injury, 350 000 ECU where there is only one victim; where more than one victim is involved in a single claim, this amount shall be multiplied by the number of victims,

- in the case of damage to property 100 000 ECU per claim, whatever the number of victims.

Member States may, in place of the above minimum amounts, provide for a minimum amount of 500 000 ECU for personal injury where more than one victim is involved in a single claim or, in the case of personal injury and damage to property, a minimum overall amount of 600 000 ECU per claim whatever the number of victims or the nature of the damage.'

5. Article 5 of the Second Directive, as amended by Annex I, Part IX, F, entitled 'Insurance', of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties (OJ 1985 L 302 P, p. 23, 218, hereinafter 'the Act of Accession') provides as follows:

'1. Member States shall amend their national provisions to comply with this directive not later than 31 December 1987. ...

2. The provisions thus amended shall be applied not later than 31 December 1988.

3. Notwithstanding paragraph 2:

(a) the Kingdom of Spain, the Hellenic Republic and the Portuguese Republic shall have a period until 31 December 1995 in which to increase guarantees to the levels required by Article 1(2) ...'.

Portuguese legislation

6. Decree-Law No 522-85 of 31 December 1985 establishing compulsory insurance against civil liability in respect of motor vehicles (Diário da República I, série A, No 301, of 31 December 1985) requires civil liability in respect of the use of motor vehicles to be covered by insurance which complies with the minimum amounts laid down by the Second Directive.

7. Article 508(1) of the Portuguese Civil Code provides:

'Compensation for a road-traffic accident, in the absence of any fault on the part of the person responsible, is subject to maximum limits: where there is a single victim, fatal or otherwise, twice the figure that may be awarded by the Court of Second Instance; where there are several victims, fatal or otherwise, of the same accident, twice the figure that may be awarded by the Court of Second Instance in respect of each of them, but only up to a total of six times the figure that may be awarded by the Court of Second Instance; where the damage is to property, even where belonging to various owners, an amount equal to the figure that may be awarded by the Court of Second Instance.'

8. According to the information provided by the national court, the limit applicable in the main proceedings in the present case was EUR 29 927.88.

9. According to the observations submitted to the Court, the victim of a road-traffic accident may also avail himself of civil liability based on fault. The Portuguese Civil Code does not lay down any limit for the compensation to which a victim may be entitled under that type of liability.

The main proceedings and the question referred to the Court

10. On 20 March 2000, Mr Messejana Viegas was injured in a road-traffic accident when the vehicle in which he was travelling went out of control.

11. Mr Messejana Viegas claims he was a passenger and that the driver of the vehicle was at fault. In the event that he cannot prove that the driver was at fault, he takes the view that the driver is liable as the person liable for the risk. It was on that basis that he brought proceedings against Zurich, as the driver's insurer, before the national court.

12. Mr Messejana Viegas also claims that the vehicle was faulty, a defect for which Mitsubishi must be held responsible by virtue of liability for defective products. It was on that basis that he brought proceedings against Mitsubishi before the national court.

13. Mr Messejana Viegas claims that the court should order the defendants to pay him damages amounting to EUR 523 737.79 and EUR 12 679.44 in respect of his incapacity to work and sundry expenses, to compensate him for any future material or non-material damage, in particular to provide or pay for all the appropriate assistance necessary to restore him to health and the help of a care assistant, together with interest on all such amounts.

14. The defendants challenge the version of the facts and the claims submitted by Mr Messejana Viegas. The latter maintains that, notwithstanding the existence of different versions of the circumstances of the accident, there is at the very least strict liability.

15. The national court considers that determination of the persons liable for the payment of the compensation sought by Mr Messejana Viegas depends on the interpretation which must be given to the Second Directive. It points out that that directive makes no distinction between types of civil liability and that the minimum amounts of cover for which it provides are greater than the maximum laid down by Article 508(1) of the Portuguese Civil Code for the compensation of victims of accidents in which the person liable is not at fault.

The question referred to the Court

16. Since it considered that the answer to the question referred could be clearly deduced from its case-law, the Court, in accordance with Article 104(3) of its Rules of Procedure, informed the referring court that it proposed to give its decision by reasoned order and invited the persons referred to in Article 23 of the Statute of the Court of Justice to submit any observations they might have on that proposal. Only the German Government and the Commission responded to the Court's invitation, stating that they had no observations to make.

17. It is clear from the order for reference that the national court essentially seeks to know whether Article 1(2) of the Second Directive precludes national legislation which provides for a number of types of civil liability applicable to road-traffic accidents and sets for one of them maximum amounts of cover which are lower than the minimum cover prescribed by the aforementioned article.

18. The Portuguese and German Governments contend that the Second Directive is not intended to harmonise the types of civil liability applicable in the Member States to road-traffic accidents. The Member States are required only to take all measures to ensure that civil liability arising in a domestic legal system is covered by insurance which is in line with the minimum amounts of cover laid down by the Second Directive. A Member State fulfils that obligation where it has taken the necessary measures to ensure that civil liability based on fault is covered by insurance which fulfils the requirements of the Second Directive. If domestic law additionally enables the victim to avail himself of a system of civil liability based on risk, it is not necessary for the civil liability arising under that system to be covered also by insurance providing a level of cover which corresponds to the amounts set by the Second Directive.

19. The claimant in the main proceedings, the Hellenic Government and the Commission take the opposite view. They acknowledge that the choice of the type of civil liability applicable to road-traffic accidents falls within the powers of the Member States. However, they consider that it is clear from the judgment in Case C-348-98 Mendes Ferreira and Delgado Correia Ferreira [2000] ECR I-6711, that where domestic law renders a person civilly liable for such an accident, that liability, irrespective of its nature or basis, must be covered by insurance which complies with the requirements laid down by the Second Directive.

20. In that regard, it must be borne in mind that, in Mendes Ferreira and Delgado Correia Ferreira, the Court held that Article 1(2) of the Second Directive precludes national laws laying down maximum amounts of compensation that are lower than the minimum amounts of cover laid down by those provisions where, in the absence of fault on the part of the driver of the vehicle which caused the accident, only civil liability for materialisation of risk arises.

21. It follows that, although it did not intend to require the adoption of a particular type of liability, the Community legislature did, on the other hand, certainly intend to require that all civil liability in respect of the use of motor vehicles be covered, irrespective of whether it was based on fault or risk. Contrary to what was contended by the Portuguese and German Governments, those Member States which provide for a number of types of civil liability applicable to road-traffic accidents cannot restrict the protection under the Second Directive to one or some of those types but must extend it to all types.

22. Any other interpretation would deprive Article 3(1) of the First Directive and Article 1(2) of the Second Directive of their intended effect. That effect, which is to protect the victims of road-traffic accidents by means of compulsory civil-liability insurance, would be jeopardised if cover for such liability by insurance was left to the discretion of the national legislature.

23. The Court has consistently held that the obligation of national courts to disapply national legislation contrary to a directive does not have the effect of enabling it to impose on an individual an obligation laid down by a directive which has not been transposed (see, in particular, Case C-91-92 Faccini Dori [1994] ECR I-3325, paragraph 20, and Case C-168-95 Arcaro [1996] ECR I-4705, paragraph 42).

24. It should be borne in mind that, in terms of the judgment in Joined Cases C-6-90 and C-9-90 Francovich and Others v Italy [1991] ECR I-5357, paragraph 39, Community law requires the Member States to make good damage caused to individuals through failure to transpose a directive, provided that three conditions are fulfilled. First, the purpose of the directive must be to grant rights to individuals. Second, it must be possible to identify the content of those rights on the basis of the provisions of the directive. Finally, there must be a causal link between the breach of the State's obligation and the damage suffered (Faccini Dori, paragraph 27).

25. In the light of the foregoing considerations, the answer to be given to the question referred must be that Article 1(2) of the Second Directive precludes national laws which provide for a number of types of civil liability applicable to road-traffic accidents laying down, in respect of one of them, maximum amounts of compensation that are lower than the minimum amounts of cover laid down by that article.

Costs

26. The costs incurred by the Portuguese, German and Hellenic Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (First Chamber),

in answer to the question referred to it by the Tribunal Judicial da Comarca de Alcácer do Sal by order of 26 April 2002, hereby rules:

Article 1(2) of the Second Council Directive 84-5-EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles precludes national laws which provide for a number of types of civil liability applicable to road-traffic accidents laying down, in respect of one of them, maximum amounts of compensation that are lower than the minimum amounts of cover laid down by that article.