High Court 

Director of Public Prosecutions v O'Connor

1998/193 SS

22 July 1998 

MORRIS P: 

This matter comes before the court as a Case Stated by Judge Mary O'Hanlon Judge of the District Court sitting at Shanagolden pursuant to the provisions of section 52 of the Courts (Supplemental Provisions) Act 1961. 

The matter at issue is the power of members of An Garda Siochana to demand the production of a certificate of insurance in relation to the use of a mechanically propelled vehicle in a public place pursuant to the Road Traffic Acts or otherwise. 

The core facts were not in issue and can be summarised as follows. 

On the 30 of January, 1997 Garda Stephen O'Carroll made a demand upon the accused for the production of a Certificate of Insurance or certificate of exemption in relation to the use by him of a mechanically propelled vehicle namely a Ford Transit Van registration number C196YRJ at a public place namely Ballycormac, Shanagolden, Co Limerick on the 30 of January, 1997. No certificate of insurance or certificate of exemption was produced by the accused. 

At the hearing of the complaint it was contended on behalf of the accused that An Garda Siochana had no power to demand production of a certificate of insurance or certificate of exemption in relation to a vehicle which is deemed to be based in another Member's State of the European Union by virtue of Council Directive 72/166/EEC as amended by 72/430/EEC and a further amendment by the Second Council Directive 84/5/EEC. It was submitted on behalf of the accused that all of these Directives were applicable in the State and the effect of such Directives were that the checking of insurance and demanding of insurance particulars in relation to civil liability was prohibited in relation to vehicles deemed to be based in other Member States and that such vehicles were deemed to be based in the territory of the State of which the vehicle bears the registration plate. 

In the Case Stated the question for the determination of the court is put in the following way:- 

(a) "Having regard to the provisions of the Council Directive 72/166 and in particular Article 2 thereof the Commission Directive of the 6 of February, 1994 and in particular Article (1) thereof and Council Directive 84/5/EEC and in particular Article 4 thereof and having regard to the provisions of the European Communities (Road Traffic) Compulsory Insurance Regulations 1995 purportedly implementing the terms of Council Directive 72/166 the Garda Siochana is entitled pursuant to the provision of section 67 of the Road Traffic Act, 1961 as amended to demand from the accused production of a certificate of insurance in relation to his use of a mechanically propelled vehicle in a public place to wit Ballycormac, Shanagolden in the County of Limerick on the 30 of January, 1997 in the course of his employment in the motor garage business bearing a registration plate of and registered in the United Kingdom numbers and letter C196YRJ". 

On behalf of the accused Mr O'Keeffe SC has raised by way of a preliminary point the provisions of Article 177 of the EC Treaty which provides: 

"The Court of Justice shall have jurisdiction to give preliminary rulings concerning; 

(a) the interpretation of this Treaty; 

(b) the validity and interpretation of Acts of the Institutions of the Community and of the ECB. 

(c) interpretation of the Statutes of Bodies established by an Act of the Council, where those Statutes so provide. 

Where such question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court of Justice to give a ruling thereon. 

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decision there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court of justice". 

It is submitted by Mr O'Keeffe that a Case Stated pursuant to the provisions of section 52 of the Courts (Supplemental Provisions) Act, 1961 falls into the latter category and submits that the issues raised in this case must be brought before the Court of Justice. 

I do not accept this proposition. In the first instance it appears to me that my determination of the Consultative Case Stated will result in the matter returning to the District Court and from the decision of the learned District Judge the accused, if convicted, has a right of appeal dei novo to the Circuit Court (see section 18(1) of the Courts of Justice Act, 1928). The Circuit Court, in turn, can state a case for the decision of the Supreme Court (see section 16 of the Courts of Justice Act, 1947. 

In these circumstances I am of the view that the decision of this court could not be regarded as one against which there is no judicial remedy under national law. 

Moreover it would be my intention to grant leave to either party in this case to appeal my determination to the Supreme Court under section 52(2) of the Courts (Supplemental Provisions) Act, 1961. 

Accordingly I am of the view that Article 177 does not preclude this court from determining the issues before it. 

Article 2(1) of Council Directive 72/166/EEC provides as follows: 

"Member States shall refrain from making checks on insurance against civil liability in respect of vehicles normally based in the territory of another Member State. 

Likewise, Member States shall refrain from making such insurance checks on vehicles normally based in the territory of a third country entering their territory from the territory of another Member State. Member States may, however, carry out random checks." 

This Article was brought into effect by a Commission Decision of the 6 of February 1974, providing that "from 15 May 1974 each Member State shall refrain from making checks on insurance against civil liability in respect of vehicles which are normally based in the European territory of another Member State . . ." 

It is submitted on behalf of the accused that Article 2(1) has the effect of entirely prohibiting any checks on the insurance of vehicles based in another Member State, including internal checks. 

It is submitted on behalf of the Prosecutor that Article 2(1) is more limited in its scope and simply prevents Member States from carrying out checks on borders, leaving it permissible to carry out internal checks. It is submitted on behalf of the Prosecutor that the Directive was aimed at prohibiting customs officers and like officials from stopping vehicles entering the jurisdiction for the purpose of checking on their insurance status. In determining which of these interpretations is correct I am satisfied that I am entitled to adopt a schematic approach to interpreting the terms of the Directive (see Murphy v Telecom Eireann [(1989] ILRM 53 and Lawlor v Minister for Agriculture [1990] 1 IR 356). 

As part of this approach I believe that it is appropriate to look at the recitals of the Directive itself in order to determine its purpose. In doing so it would appear that the directive does concern itself primarily with border checks. The following Recitals are relevant: 

Recital 6. "Whereas the only purpose of frontier controls for compulsory insurance cover against civil liability is to safeguard the interests of persons who may be the victims of accidents caused by such vehicles; whereas the existence of such frontier controls results from disparities between national requirements in this field;" (emphasis added) 

Recital 8: "Whereas the Commission Recommendation of the 31 June, 1968 on control by customs of travellers crossing intra-Community frontiers calls upon Member States to carry out controls on travellers and their motor vehicles only under exceptional circumstances and to remove the physical barriers at customs posts;" (emphasis added) 

Support for the Prosecutors interpretation is to be found in a number of cases which, though they do not deal directly with the issue involved here, appear to support the view that the directive is intended to deal with border controls only. The following passages are relevant; 

"In order to facilitate the movement of persons between the Member States, Directive 72/166 . . . established a system based on the following principles: the obligation of each of the Member States to ensure that civil liability in respect of the use of vehicles is covered by insurance (Article 3) and, therefore, a presumption that any community vehicle operating in the territory of the Community is insured; elimination of cheeks on green cards at frontier crossings within the Community for vehicles normally based in the territory of a Member State (Article 2(1))." (emphasis added) 

See Fournier v van Werven Case C-73/89, [1992] ECR I-5621, para 9: 

In SA Gambetta Auto v Bureau Central Francais Case 344/82, [1984] ECR 591, para 13 which is a case involving the replacement of Green Cards by registration plates the following passage is to be found: 

"It must be remembered that the Directive seeks to abolish checking of the "Green Card" at the frontier." 

Again in Demouche v Fonds de Garantie Automobile 152/83, [1987] ECR 3833 a reference appears to "the abolition of checks on Green Cards for vehicles normally based in a Member State when they cross intra-community frontiers (Article 2(1))." 

Further authority is to be found in Asbl Bureau Belge des Assureurs Automobiles v Fantozzi 116/83, [1984) ECR 2481 in which Council Directive 72/166 is stated as having been established to: 

"Abolition of checks on Green Cards for vehicles normally based in Member States entering the territory of another Member State . . ." 

In criminal proceedings against Ruiz Bernaldez 129/94, (1996) All ER (EC) 741, at para 19 of the Opinion of the Advocate General the following appears: 

"As the title of the German version suggests, the aim of the first directive was to abolish frontier controls of civil liability insurance cover . . ." (emphasis added) 

Accordingly I am of the view that having regard to the Recitals and case law on the proper interpretation of Article 2(1) the prohibition relates to a border cheek. This view is further supported by the consideration of the purpose of the Directive which is stated in Recital 9 to be the liberalisation of movement between Member States. This purpose is served by the prohibition of border checks, but is not served by the prohibition of internal checks, at least so long as these checks are carried out in a non-discriminatory manner. If internal checks treat domestic and non-domestic vehicles equally then it is hard to see how they could restrict movement between Member States in the way in which the Directive seeks to prevent. 

Accordingly I am of the view that Article 2(1) of the Directive should be read so as to prohibit border checks only. 

Assuming one interprets Article 2(1) in that way then there is no need to consider the final sentence in the Article which permits random checks to be made. If, however, the Article is to be read as to prohibit internal checks on insurance then an interpretation of the final sentence is of importance. It provides: 

"Member States may, however, carry out random checks". 

It would fall to consider whether this final sentence qualifies both paragraphs of the Article or just the second paragraph. In other words are random checks permitted on vehicles based in Member States, under paragraph 1 or merely on those based in third countries, paragraph 2. 

I am aware of no authority which provides that the format of the Article is to be taken into account in its interpretation as a matter of European Law. If it is then the final sentence would seem to be limited in its effect to paragraph 2 and random checks would only be permitted on vehicles from third countries. 

If this interpretation is correct then it would result in the conclusion that the Directive would in effect be giving preferential treatment to Member State vehicles as against those of vehicles based in third countries however the operation of such a provision would in my view present very considerable difficulties. 

Article 1 of the Directive provides: 

"In cases where neither registration plate nor insurance plate nor distinguishing sign is required of certain types of vehicles, the territory of the State in which the person who has custody of the vehicle is normally resident (is the normal base of the vehicle)". 

In other words "the normal base of the vehicle" can vary from day to day depending on the State in which the person having custody of the vehicle normally resides. A consequence of this is that if random checks are permissible only in third country vehicles there would follow a situation in which an official would not know whether he is authorised to make a check until the check is actually completed. There would be nothing in the vehicle to indicate to the official whether it was a vehicle based in a Member State or in a third country. 

I am of the view that this was never contemplated and accordingly hold that the final sentence should be read so as to permit random checks on all vehicles referred to in Article 2(1) of the Directive. 

Accordingly I believe that the question set in the Case Stated should be answered so as to confirm that the Garda Siochana was entitled to make the demand referred to at paragraph 5(a) of the Case Stated providing that the learned District Judge is satisfied that this was a random check.