The general prohibition of discrimination on grounds of nationality may not be invoked to challenge a clause in a contract between an insurance company and a manufacturer of medical devices that limits insurance coverage against civil liability arising from those devices to harm occurring in the territory of a single Member State. Under current EU law, such a situation does not fall within the scope of application of EU law.
Such was the judgment handed down by the Court of Justice of the European Union on Thursday, 11 June, in Case C-581/18 in response to questions referred for a preliminary ruling by the Higher Regional Court of Frankfurt am Main (Germany), which questioned the compatibility of this clause with the prohibition of any discrimination on grounds of nationality (first paragraph of Article 18 of the TFEU).
A German national, residing in Germany, had breast implants inserted, in that country, that were manufactured by Poly Implant Prothèses SA (PIP), a company based in France. PIP had taken out an insurance contract with the French company Allianz IARD SA; this contract covered its civil liability and included a clause limiting the geographical extent of the insurance coverage to harm that occurred in France.
The person concerned had then been advised to have the defective implants removed.
That patient brought an action in Germany for damages against her doctor, TÜV Rheinland (which had approved the implants), and Allianz; in particular, she claimed that, under French law, she had a direct right of action against the insurance company, considering the geographical limitation clause in the contract to be contrary to EU law.
However, in the court’s view, in European secondary law (Directive 93/42 on medical devices and Directive 85/374 on the approximation of the laws, regulations and administrative provisions), there is no provision that sets out an obligation on the manufacturer to take out such insurance or that regulates such insurance. The court concludes that, as EU law currently stands, this insurance is not the subject of regulation by EU law.
Moreover, according to the court, the case does not fall within the scope of the free movement of citizens or the freedom to provide services, since the patient received medical treatment in her Member State of residence and since the insurance contract had been concluded between two companies established in the same Member State, France. The dispute also does not relate to the movement of goods, as the cross-border movement of implants was not affected by any discriminatory obstacle. (Original version in French by Camille-Cerise Gessant)