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Court of Justice of the European Communities (including Court of First Instance Decisions) |
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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Evans (Approximation of laws) [2003] EUECJ C-63/01 (04 December 2003) URL: http://www.bailii.org/eu/cases/EUECJ/2003/C6301.html Cite as: [2005] All ER (EC) 763, [2003] EUECJ C-63/01, [2004] Lloyd's Rep IR 391, [2004] RTR 534, [2003] ECR I-14447, [2004] RTR 32, [2004] 1 CMLR 47, [2003] EUECJ C-63/1 |
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JUDGMENT OF THE COURT (Fifth Chamber)
4 December 2003 (1)
(Approximation of laws - Directive 84/5/EEC - Compulsory insurance against civil liability in respect of motor vehicles - Damage or injury caused by unidentified or insufficiently insured vehicles - Protection of victims - Defective transposition of the directive - Liability of the Member State concerned)
In Case C-63/01,
REFERENCE to the Court under Article 234 EC by the High Court of Justice of England and Wales, Queen's Bench Division, for a preliminary ruling in the proceedings pending before that court between
Samuel Sidney Evans
and
The Secretary of State for the Environment, Transport and the Regions,
and
The Motor Insurers' Bureau,
on the interpretation of Article 1(4) 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),
THE COURT (Fifth Chamber),
composed of: P. Jann (Rapporteur), acting for the President of the Fifth Chamber, D.A.O. Edward and S. von Bahr, Judges,
Advocate General: S. Alber,
Registrar: L. Hewlett, Principal Administrator,
after considering the written observations submitted on behalf of:
- Samuel Evans, by R. Plender QC and D. Broatch, Barrister,
- the Motor Insurers' Bureau, by D. O'Brien QC and F. Randolph, Barrister,
- the United Kingdom Government, by G. Amodeo, acting as Agent, P. Roth QC and H. Davies, Barrister,
- the Commission of the European Communities, by C. Tufvesson, C. Ladenburger and M. Shotter, acting as Agents,
having regard to the Report for the Hearing,
after hearing the oral observations of S. Evans, represented by R. Plender and D. Broatch, of the Motor Insurers' Bureau, represented by D. O'Brien and F. Randolph, of the United Kingdom Government, represented by J.E. Collins, acting as Agent, P. Roth and H. Davies, and of the Commission, represented by M. Shotter, at the hearing on 11 July 2002,
after hearing the Opinion of the Advocate General at the sitting on 24 October 2002,
gives the following
Legal background
Community legislation
1. Each Member State shall, subject to Article 4, 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.
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, ECU 350 000 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 ECU 100 000 per claim, whatever the number of victims.
Member States may, in place of the above minimum amounts, provide for a minimum amount of ECU 500 000 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 ECU 600 000 per claim whatever the number of victims or the nature of the damage.
...
4. Each Member State shall 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 paragraph 1 has not been satisfied. This provision shall be without prejudice to the right of the Member States to regard compensation by that body as subsidiary or non-subsidiary and the right to make provision for the settlement of claims between that body and the person or persons responsible for the accident and other insurers or social security bodies required to compensate the victim in respect of the same accident.
The victim may in any case apply directly to the body which, on the basis of information provided at its request by the victim, shall be obliged to give him a reasoned reply regarding the payment of any compensation.
However, Member States may exclude the payment of compensation by that body in respect of persons who voluntarily entered the vehicle which caused the damage or injury when the body can prove that they knew it was uninsured.
Member States may limit or exclude the payment of compensation by that body in the event of damage to property by an unidentified vehicle.
They may also authorise, in the case of damage to property caused by an uninsured vehicle, an excess of not more than ECU 500 for which the victim may be responsible.
Furthermore, each Member State shall apply its laws, regulations and administrative provisions to the payment of compensation by this body, without prejudice to any other practice which is more favourable to the victim.
National legislation
- The Agreement is to apply to any case in which an application is made to the MIB for a payment in respect of the death of or bodily injury to any person caused by or arising out of the use of a motor vehicle on a road in Great Britain where, subject to certain conditions which are not relevant to this case, the applicant for the payment is unable to trace any person responsible for the death or injury (clause 1).
- On any application in a case to which the Agreement applies, the MIB is to award payment of an amount which is to be assessed in the same way as a court, applying as appropriate the laws in force, would assess the damages which the applicant would have been entitled to recover from the untraced person (clause 3).
- The MIB must cause any application for a payment under the Agreement to be investigated and decide whether to make an award (clause 7).
- The MIB is required to give the applicant a reasoned reply regarding the payment of any compensation. Where the MIB decides to make an award, it must notify the applicant of the amount it proposes to pay and the way in which that amount has been calculated. Where the applicant decides to accept the award, the MIB must pay to the applicant the amount of the award (clauses 9 and 10).
- The applicant is to have a right of appeal to an arbitrator against any decision of the MIB (clause 11).
- Before lodging an appeal, the applicant may make comments to the MIB on its decision and may supply further evidence relating to the application. The MIB may investigate that new evidence and must inform the applicant of the result of such investigation and of any change in its decision (clause 13).
- On appeal, the arbitrator is to decide whether the MIB should make an award under the Agreement and, if so, the amount which it should award to the applicant (clause 16).
- The arbitrator is to be selected from two panels of Queen's Counsel appointed respectively by the Lord Chancellor and the Lord Advocate (clause 18).
- The arbitrator is to decide the appeal on the documents submitted to him, although he may ask the MIB to make any further investigation which he considers desirable, and the applicant may submit comments on the findings of such investigation (clause 17).
- Each party to the appeal is to bear its own costs (clause 21). The MIB is to pay the arbitrator's fees, except where it appears to the arbitrator that there were no reasonable grounds for the appeal, in which case he may decide that his fee ought to be paid by the applicant (clause 22).
The main proceedings and the questions referred to the Court
- the Agreement makes no provision for payment of interest on the damages awarded;
- the Agreement also fails to make provision for payment of the costs incurred by victims in proceedings for compensation;
- victims' access to court is insufficient in that they have a full right of appeal against the determination of the MIB only to an arbitrator and not to a court;
- the United Kingdom has not duly authorised a body to provide compensation for victims of untraced drivers, as required by the Second Directive, since the Agreement does not create rights which such victims can enforce directly against the MIB.
1. On the proper interpretation of 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 (the Second Motor Insurance Directive):
(a) must the arrangements concerning the provision of compensation by the body established or authorised pursuant to Article 1(4) include provision for the payment of interest on the sums found to be payable for the damage to property or personal injuries?
(b) if the answer to question (a) is yes, from what date and on what basis should such interest be calculated?
2. On the proper interpretation of Article 1(4) of the Second Motor Insurance Directive, in circumstances where the compensating body itself has an obligation to investigate the victim's injury and loss (and to incur the costs thereof, including the cost of medical and other reports):
(a) must the arrangements concerning the provision of compensation by the body include provision for the payment of the costs incurred by a victim in preparing and making his application to that body for compensation?
(b) if the answer to question (a) is yes, on what basis are those costs to be calculated in a case where that body has made an offer to the victim in excess of the amount that he finally recovers, which offer the victim declined to accept?
3. On the proper interpretation of Article 1(4) of the Second Motor Insurance Directive, if the victim's application for compensation is determined by a body that is not a court, must he have a full right to appeal against that determination to a court, on both the facts and the law, rather than an appeal to an independent arbitrator having the following principal characteristics:
(i) the victim may appeal to the arbitrator on both the facts and the law;
(ii) when giving notice of appeal, the victim may make further representations and adduce further evidence to the compensating body upon which the compensating body may alter its award prior to the appeal;
(iii) the victim is provided in advance with a copy of all the material to be provided to the arbitrator and is given the opportunity to add any material that he wishes in response;
(iv) the arbitrator makes an award, without an oral hearing, in which he or she decides what award the compensating body ought to make and gives reasons for that decision;
(v) if the victim is dissatisfied, he is entitled to appeal from the arbitrator to the Courts but he may do so only on the grounds of serious irregularity affecting the arbitration or on a question of law (including whether there was any evidence to support any particular conclusion of the arbitrator or whether any particular conclusion was one to which no arbitrator could reasonably come upon the evidence), and in the case of an appeal on a question of law, permission to appeal must be obtained from the Court which will not be given unless the decision of the arbitrator is obviously wrong and it is just and proper in all the circumstances for the Court to determine the question.
4. If the answer to questions l(a) and/or 2(a) and/or 3 is yes, has a Member State duly authorised a body under Article 1(4) of the Second Motor Insurance Directive when an existing body has the task of providing compensation to victims pursuant only to an agreement with the relevant authority of the Member State that does not correspond to the Second Motor Insurance Directive in those respects, and:
(a) that agreement creates a legal obligation owed to the relevant authority of the Member State to provide compensation to victims which is directly enforceable by the relevant authority and does not give such victims a directly enforceable legal right to claim against that body, but the victim may apply to the Court for an order that the authority should enforce the agreement if the authority were to fail to do so; and
(b) that body carries out that obligation by accepting and paying claims from victims in accordance with that agreement; and
(c) the Member State considered in good faith that the provision of that agreement gave at least as good protection to victims as the requirements of the Second Motor Insurance Directive?
5. If the answer to any of questions l(a) or 2(a) or 3 is yes, and/or if the answer to question 4 is no, does a failure to comply with the Second Motor Insurance Directive in that respect constitute a sufficiently serious breach by the Member State to give rise to liability for damages as a matter of Community law if it is established that such damage was caused?
The questions referred to the Court
Preliminary observations
The nature of the body referred to in Article 1(4) of the Second Directive
Observations submitted to the Court
Findings of the Court
The remedies available to victims
Observations submitted to the Court
Findings of the Court
Payment of interest on sums paid by way of compensation
Observations of the Court
Findings of the Court
Reimbursement of costs incurred in connection with the application for compensation
Observations submitted to the Court
Findings of the Court
Possible liability on the part of the Member State concerned
Observations submitted to the Court
Findings of the Court
Costs
89. The costs incurred by the United Kingdom Government 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 action pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Fifth Chamber),
in answer to the questions referred to it by the High Court of Justice of England and Wales, Queen's Bench Division, by order of 17 May 2000, hereby rules:
1. Article 1(4) of 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 is to be interpreted as meaning that:
- A body may be regarded as authorised by a Member State within the meaning of that provision where its obligation to provide compensation to victims of damage or injury caused by unidentified or insufficiently insured vehicles derives from an agreement concluded between that body and a public authority of the Member State, provided that the agreement is interpreted and applied as obliging the body to provide victims with the compensation guaranteed to them by Directive 84/5 and provided that victims may apply directly to that body.
- Procedural arrangements such as those adopted in the United Kingdom are sufficient to provide the protection to which victims of damage or injury caused by unidentified or insufficiently insured vehicles are entitled under Directive 84/5.
- The compensation awarded for damage or injuries caused by an unidentified or insufficiently insured vehicle, paid by the body authorised for that purpose, must take account of the effluxion of time until actual payment of the sums awarded in order to guarantee adequate compensation for the victims. It is incumbent on the Member States to lay down the rules to be applied for that purpose.
- The compensation awarded for damage or injury caused by an unidentified or insufficiently insured vehicle, paid by the body authorised for that purpose, is not required to include reimbursement of the costs incurred by victims in connection with the processing of their application for compensation except to the extent to which such reimbursement is necessary to safeguard the rights derived by victims from Directive 84/5 in conformity with the principles of equivalence and effectiveness. It is for the national court to consider whether that is the case under the procedural arrangements adopted in the Member State concerned.
2. It is incumbent on the national court, if examination of the existing compensation system discloses a defect in transposition of Directive 84/5 and if that defect has adversely affected Mr Evans, to determine whether the breach of that obligation of transposition is sufficiently serious.
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Jann
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Delivered in open court in Luxembourg on 4 December 2003.
R. Grass V. Skouris
Registrar President
1: Language of the case: English.
