According to Advocate General Yves Bot’s conclusions to the European Court of Justice on Tuesday 10 April in Case C-122/17, insurance companies should not be made liable for the damages resulting from accidents that should have been covered under directive 90/232/EC on civil liability motor insurance but which are not done so due to poor transposition of this directive by a member state.
An insurance company has requested repayment by the Irish state of €3 million in compensation that it paid following a dispute regarding national legislation on civil liability motor insurance and the European directive mentioned above.
After an initial refusal of compensation on the basis of national legislation, the company was in effect obliged to compensate the passenger of a van who was injured during an accident in 1999 when he was travelling in the part of the vehicle that was not equipped with passenger seats. The compensation was paid by applying a 2007 decision from the European Court of Justice (C-356/05) that ruled against, for inadequate transposition of the “civil liability motor insurance” directive, the Irish legislation in question, which excluded compensation in similar circumstances in violation of the said directive.
The Irish Court requested that the European Court of Justice decide whether in these conditions it should allow this exclusion clause to remain unimplemented. This situation would mean that the company would be unable to cite it in its favour and would be responsible for paying the compensation itself. It would also mean that the directive would apply directly and with retroactive effect to an individual (the insurance company), which is contrary to EU law.
In reply to these questions, the Advocate General stipulates that although these national provisions contrary to the directive (the exclusion of compensation for passengers that are not travelling on an attached seat) must effectively be left unimplemented by the Irish court, it should not be made incumbent on the insurance company, with retroactive effect, the obligation of compensating the passenger stipulated in the directive.
That would effectively lead to the directive having a direct effect on the company by making it bear a risk which it did not take into account in the calculation of the insurance premium in respect of the company due to poor transposition of the directive by the Irish state.
Mr Bot therefore concludes that insurance companies cannot be held liable for these risks that are not covered in national legislation due to the incorrect transposition of the directive by member state. (Original version in French by Francesco Gariazzo)