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Opinion of Advocate General Bot delivered on 14 June 2017.
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OPINION OF ADVOCATE GENERAL

BOT

delivered on 14 June 2017 (1)

Case C334/16

José Luís Núñez Torreiro

v

AIG Europe Limited, Sucursal en España,

Unespa — Unión Española de Entidades Aseguradoras y Reaseguradoras

(Request for a preliminary ruling from the Audiencia Provincial de Albacete (Provincial Court of Albacete, Spain))

(Reference for a preliminary ruling — Directive 2009/103/EC — Civil liability insurance for motor vehicles — Compulsory insurance — Derogations — Accident involving a military vehicle on unsuitable terrain — Definition of ‘use of vehicles’ — Definition of ‘normal function of the vehicle’)






I.      Introduction

1.        This request for a preliminary ruling concerns the interpretation of Articles 3 and 5 of Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability. (2)

2.        The request was made in proceedings between José Luís Núñez Torreiro and an insurance company, namely AIG Europe Limited, Sucursal en España (3) (‘the insurer’) regarding the payment of compensation on the basis of compulsory insurance against civil liability in respect of the use of motor vehicles. (4)

3.        The questions raised by the national court essentially seek to clarify the meaning of ‘use of vehicles’ and, in particular, whether Member States are able to lay down a different definition of that concept in the light of Directive 2009/103 in order to determine whether the place of use may be a ground for derogation from the insurance obligation. This necessitates clarification of the definition of ‘normal function of the vehicle’ set out in the judgment of 4 September 2014 in Vnuk. (5)

4.        In this Opinion, I will submit that since the concept of ‘use of vehicles’, appearing in the first paragraph of Article 3 of Directive 2009/103, was framed as an autonomous concept of EU law, it must be given a uniform interpretation in all Member States, having regard to the vehicle’s use in accordance with its ‘normal function’. I will also submit that the onus is on the national court to interpret the body of rules, such as those at issue in the main proceedings, so as to ensure that full practical effect is given to the obligation in respect of insurance against civil liability for motor vehicles. I will explain why circumstances such as those at issue in the main proceedings do not warrant any alteration of the boundaries of the concept of use of a vehicle in accordance with its ‘normal function’ in the light of the terrain on which the vehicle was used.

II.    Legal context

A.      EU law

5.        Recitals 1 to 3, 10 and 20 of Directive 2009/103 state:

‘(1)      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, [(6)] 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, [(7)] Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles [(8)] and Directive 2000/26/EC of the European Parliament and of the Council of 16 May 2000 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles (Fourth motor insurance Directive) [(9)] have been substantially amended several times … In the interests of clarity and rationality those four Directives should be codified, as well as Directive 2005/14/EC of the European Parliament and of the Council of 11 May 2005 amending … Directives 72/166/EEC, 84/5/EEC, 88/357/EEC and 90/232/EEC and Directive 2000/26/EC … [(10)]

(2)      Insurance against civil liability in respect of the use of motor vehicles … is of special importance for European citizens, whether they are policyholders or victims of an accident. It is also a major concern for insurance undertakings as it constitutes an important part of non-life insurance business in the Community. Motor insurance also has an impact on the free movement of persons and vehicles. It should therefore be a key objective of Community action in the field of financial services to reinforce and consolidate the internal market in motor insurance.

(3)      Each Member State must 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 insurance cover are to be determined on the basis of those measures.

(10)      Each Member State should be able to act in derogation from the general obligation to take out compulsory insurance in respect of vehicles belonging to certain natural or legal persons, public or private. For accidents caused by such vehicles, the Member State so derogating should designate an authority or body to compensate for the damage to victims of accidents caused in another Member State. Steps should be taken to ensure that due compensation is paid not only to the victims of accidents caused by these vehicles abroad but also the victims of accidents occurring in the Member State in which the vehicle is normally based, whether or not they are resident in its territory. Furthermore, Member States should ensure that the list of persons exempt from compulsory insurance and the authorities or bodies responsible for compensation of victims of accidents caused by such vehicles is communicated to the Commission for publication.

(20)      Motor vehicle accident victims should be guaranteed comparable treatment irrespective of where in the Community accidents occur.’

6.        Under Article 1(1) of Directive 2009/103, ‘vehicle’ means any motor vehicle intended for travel on land and propelled by mechanical power, but not running on rails, and any trailer, whether or not coupled.

7.        Article 3 of that directive provides:

‘Each Member State shall, subject to Article 5, 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 the measures referred to in the first paragraph.

The insurance referred to in the first paragraph shall cover compulsorily both damage to property and personal injuries.

…’

8.        Article 5 of Directive 2009/103, (11) entitled ‘Derogation from the obligation in respect of compulsory insurance of vehicles’, states:

‘1.      A Member State may derogate from Article 3 in respect of certain natural or legal persons, public or private; a list of such persons shall be drawn up by the State concerned and communicated to the other Member States and to the Commission.

2.      A Member State may derogate from Article 3 in respect of certain types of vehicle or certain vehicles having a special plate; the list of such types or of such vehicles shall be drawn up by the State concerned and communicated to the other Member States and to the Commission.

…’

9.        Article 29 of that directive provides:

‘Directives 72/166/EEC, 84/5/EEC, 90/232/EEC, 2000/26/EC and 2005/14/EC … are hereby repealed …

References to the repealed Directives shall be construed as references to this Directive and shall be read in accordance with the correlation table set out in Annex II.’

B.      Spanish law

10.      Article 1 of the ley sobre responsabilidad civil y seguro en la circulación de vehículos a motor (Law on civil liability and motor vehicle insurance), approved by Royal Legislative Decree 8/2004 of 29 October 2007, (12) provides:

‘1.      Because of the risk involved in driving a motor vehicle, its driver shall be liable for damage caused to persons or property as a consequence of its use.

6.      “Motor vehicle” and “use of a vehicle” shall be defined by regulation, for the purposes of this Law. At all events, use of a vehicle will not be deemed to include use of the motor vehicle as an instrument for committing intentional offences against persons and property.’

11.      The first and second subparagraphs of Article 7(1) of the LRCSCVM provide:

‘The insurer will have to pay to the injured party, within the scope of compulsory insurance and under the mandatory insurance scheme, the amount of the damage suffered by his person and property, and also any costs and other losses to which he is entitled under the applicable legislation. It will be exempt from this obligation only if it proves that the event does not give rise to civil liability under Article 1 of this Law.

The injured party or his heirs may bring a direct action against the insurer for payment of the abovementioned damages, which will be time-barred after one year.’

12.      Article 2 of the reglamento del seguro obligatorio de responsabilidad civil en la circulación de vehículos de motor (Regulation on compulsory civil liability insurance for motor vehicles), approved by Royal Decree No 1507/2008 of 12 September 2008, (13) provides:

‘1.      For the purposes of civil liability in respect of the use of motor vehicles and the compulsory insurance cover governed in this Regulation, an incident arising from use of a vehicle is understood to be an incident stemming from the risk created by the use of motor vehicles referred to in the previous article, both in garages and parking areas and on public and private roads or terrain suitable for traffic, urban or interurban, and on roads or terrain which, although unsuitable, are in general use.

2.      The following are not considered to be incidents arising from use of a vehicle:

(a)      Those arising from the holding of sporting events with motor vehicles on circuits specially designed for the purpose, or authorised for those events …

(b)      Those arising from the performance of industrial or agricultural tasks by motor vehicles specially designed for the purpose, without prejudice to the application of paragraph 1 in the event that those vehicles travel along the roads or terrain mentioned in that paragraph when not performing their industrial or agricultural tasks.

As regards the logistics of vehicle distribution, industrial tasks are loading, unloading, storage, and other necessary operations in the handling of vehicles regarded as goods, except for transportation by road as referred to in paragraph 1.

(c)      Movement of motor vehicles on roads or terrain to which the legislation indicated in paragraph 1 is not applicable, such as port or airport areas.

3.      Similarly, the use of a motor vehicle as an instrument for committing intentional offences against persons and property will not be considered use of a vehicle. However, the use of a motor vehicle in any of the ways described in the Criminal Code as conduct constituting an offence against road safety will be use of a vehicle …’

III. Factual background and questions referred for a preliminary ruling

13.      On 28 June 2012, Mr Núñez Torreiro, an officer in the Spanish army, was taking part in night-time military exercises at a military practice ground in Chinchilla, Albacete (Spain), when the army’s off-road military vehicle, (14) Aníbal, in which he was a passenger, overturned, causing him various injuries. The vehicle was travelling not in an area for wheeled vehicles, but in an area for track-laying vehicles.

14.      On the basis of Article 7 of the LRCSCVM, Mr Núñez Torreiro brought a direct action before the Juzgado de Primera Instancia No 1 de Albacete (Court of First Instance No 1 of Albacete, Spain) against the insurer with which the Spanish Ministry of Defence had taken out compulsory insurance for the vehicle. He sought compensation of EUR 15 300.56 in respect of the physical injuries he had suffered as a result of the accident.

15.      The insurer relied on Article 1(6) of the LRCSCVM, read in conjunction with Article 2 of the Regulation on compulsory insurance, to contest payment of that amount, claiming that the accident was not the result of any ‘use of a vehicle’ because it was caused when the vehicle at issue was travelling on a military practice ground, access to which is restricted for all types of non-military vehicle. The insurance company submitted that the practice ground was not in general use and was unsuitable for the purpose, within the meaning of Article 2 of that regulation.

16.      By judgment of 3 November 2015, the Juzgado de Primera Instancia No 1 de Albacete (Court of First Instance No 1 of Albacete) dismissed the action on the ground that Mr Núñez Torreiro’s injuries were not the result of any ‘use of a vehicle’ because the vehicle he had been in had been travelling on terrain unsuitable for the purpose and not in general use.

17.      Mr Núñez Torreiro lodged an appeal against that judgment before the Audiencia Provincial de Albacete (Provincial Court of Albacete, Spain). He argued that Article 1(6) of the LRCSCVM, read in conjunction with Article 2 of the Regulation on compulsory insurance, had to be interpreted restrictively, in accordance with Vnuk, in which the Court held that the insurer’s liability could not be excluded if the use of the vehicle was consistent with its normal function.

18.      The Audiencia Provincial de Albacete (Provincial Court of Albacete) expressed doubts regarding the compatibility with Article 3 of Directive 2009/103 of the definition of the concept of ‘use of vehicles’ set out in Article 2(1) of the Regulation on compulsory insurance, which restricts that concept to vehicles driven on ‘suitable’ terrain or terrain ‘in general use’. The court concerned takes the view that the only derogations from the obligation to take out insurance against civil liability arising from the use of motor vehicles, provided for in that directive, are those set out in Article 5 of the directive. Furthermore, it states that in Vnuk, the Court held, in particular, that the concept of ‘use of vehicles’ cannot be left to the assessment of each Member State and interpreted that concept as referring to the use of a vehicle in accordance with its ‘normal function’. According to the referring court, it follows that Member States are able to provide for derogations from insurers’ liability or from the concept of ‘use of vehicles’ only within the context of Article 5 of Directive 2009/103 or, in accordance with Vnuk, where vehicles are used in a manner not consistent with their normal function. The derogations from the concept of ‘use of vehicles’ provided for in Article 2(1) of the Regulation on compulsory insurance, concerning unsuitable terrain or terrain not in general use, are therefore contrary to EU law and should not be applied.

19.      The referring court expressed the same doubts regarding the derogations relating to incidents arising from sporting events or the performance of industrial or agricultural tasks, or even incidents disclosing an intention on the part of the driver to commit offences against persons or property, laid down in Article 2(2) and (3) of that regulation.

20.      In those circumstances, the Audiencia Provincial de Albacete (Provincial Court of Albacete) decided to stay the main proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1.      May the concept “use of vehicles”, as an insurance risk for civil liability in respect of the use of motor vehicles, to which the Community legislation (inter alia, Article 3 of Directive 2009/103) refers, be determined by the national legislation of a Member State differently from how it is determined by the Community legislation?

2.      If so, may that concept exclude (in addition to specific persons, plates or types of vehicles, as recognised by Article 5(1) and (2) of that directive) circumstances which depend on the place in which the vehicle is used, such as roads, or terrain “unsuitable” for motor vehicles?

3.      Similarly, is it possible to exclude as “use of a vehicle” certain activities of the vehicle relating to its purpose (such as its sporting, industrial or agricultural use) or relating to the driver’s intention (for example, the commission of an intentional offence with the vehicle)?’

IV.    My analysis

A.      Preliminary observations

21.      As a preliminary point, it is necessary, first of all, to check that the Aníbal vehicle can be classified as a ‘vehicle’ within the meaning of Directive 2009/103, that it is normally based in a Member State and that it does not fall within one of the categories of vehicle forming the subject matter of a derogation from the insurance obligation permitted under the directive.

22.      I recall that, under Article 1(1) of that directive, ‘vehicle’ covers any motor vehicle intended for travel on land and propelled by mechanical power, but not running on rails, and any trailer, whether or not coupled. The technical characteristics of the Aníbal vehicle, described in the documents before the Court, show that those requirements are met.

23.      In addition, the first paragraph of Article 3 of Directive 2009/103 provides that each Member State is, subject to Article 5, to 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. That requirement is also met since the Aníbal vehicle at issue in the main proceedings bears the number plate ET‑107351, the letters ‘ET’ being used for army vehicles owned by the Spanish Ministry of Defence. (15)

24.      Furthermore, Article 5 of that directive lays down the possibility for Member States to derogate from that obligation in respect of certain natural or legal persons, whether public or private, and certain types of vehicle. It is apparent from the documents before the Court that the Spanish Government did not make use of that derogation. (16)

25.      It can therefore be stated that the Aníbal vehicle meets the requirements set out in Directive 2009/103 and must, in consequence, be treated as a vehicle subject to the civil liability insurance obligation, something which none of the parties that submitted written observations disputes. (17)

26.      Next, as those parties have argued, the third question submitted by the referring court must be found to be inadmissible. By its third question, the referring court essentially enquires whether EU law prevents a Member State from excluding from the concept of ‘use of a vehicle’ situations such as those referred to in Article 2(2) and (3) of the Regulation on compulsory insurance, namely incidents arising from sporting events or the performance of industrial or agricultural tasks, or even incidents disclosing an intention on the part of the driver to commit offences against persons or property.

27.      It must be borne in mind in that regard that, according to the Court’s settled case-law, in the context of the cooperation between the Court and the national courts provided for by Article 267 TFEU, it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted concern the interpretation of EU law, the Court is, in principle, bound to give a ruling. However, it is also settled case-law that the Court may refuse to rule on a question if it is quite obvious that the interpretation of EU law that is sought is unrelated to the actual facts of the main action or its purpose, where the problem is hypothetical or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (18)

28.      The case at issue in the main proceedings does not concern an incident arising from a sporting event or the performance of industrial or agricultural tasks, or from an incident disclosing an intention to commit offences against persons or property. The answer to the third question referred for a preliminary ruling is therefore not useful for the purpose of reaching a decision in the main proceedings.

29.      Consequently, in the light of the case-law cited in point 27 of this Opinion, the third question submitted in the order for reference must be found to be inadmissible.

30.      Lastly, as regards the first two questions, I consider it appropriate to deal with them together, since the answer to the first question stems directly from Vnuk and the second question requires an examination of the definition of the concept of ‘use of vehicles’ set out in that judgment.

31.      Accordingly, my analysis will address, first, the autonomous nature of the concept of ‘use of vehicles’ and, secondly, the requirement concerning use of the vehicle in accordance with its ‘normal function’, which is related to it.

B.      Concept of use of vehicles

32.      By its first question, the referring court asks the Court to rule on whether the concept of ‘use of vehicles’ may, in the domestic law of a Member State, be given a different definition from that used in EU legislation, particularly in the first paragraph of Article 3 of Directive 2009/103.

33.      It should be noted at the outset that this question was clearly answered in Vnuk, although the interpretation reached in that judgment concerns Directive 72/166. While that directive was repealed by Directive 2009/103, (19) it is clear from Annex II to the latter that Articles 3 and 5 are essentially the same as Articles 3 and 4 of Directive 72/166, respectively.

34.      The Court stated in paragraph 41 of Vnuk that the concept of ‘use of vehicles’ cannot be left to the assessment of each Member State.

35.      Paragraph 42 of the judgment makes clear that that analysis is based, first of all, on the finding that none of the provisions of Directive 72/166 or of any other directives relating to compulsory insurance specifically refers to the law of the Member States in order to determine the meaning and scope of that concept, and, secondly, on the application of settled case-law that, in such a case, the provision of EU law must be given an independent and uniform interpretation, as required by the need for a uniform application of EU law and the principle of equality. To that end, account must be taken of the wording of the provision as well as the objectives pursued by the rules of which it is part.

36.      In its judgment, the Court therefore first conducted an analysis of the language versions of Directive 72/166, the terms of which differ. It is apparent that the words ‘circulation’, which may imply exclusively road use, ‘use’ or even ‘operation’, which, by contrast, do not necessarily refer to a situation involving road use, were used to describe the same concept. (20)

37.      The Court then applied its equally settled case-law according to which the provisions of EU law must be interpreted and applied in a uniform manner, in the light of the versions drawn up in all EU languages, and that where there is divergence between the language versions of an EU legal text, the provision in question must be interpreted by reference to the general scheme and purpose of the rules of which it forms part. (21)

38.      The Court drew attention, in particular, to the objective of protecting the victims of accidents caused by motor vehicles, which has continuously been reinforced by the EU legislature in the directives concerning compulsory insurance. (22) The numerous amendments referred to include the extension of guarantees in respect of personal injuries, the handling of cases without insurance cover, the entitlement to protection given to passengers, the ability for injured parties to bring a direct action, the limitation of some guarantee exclusions and the adjustment of the minimum amounts guaranteed. (23) It can now also be said that Directive 2009/103 is an instrument of codification designed to facilitate the implementation of protective provisions, provisions to which the judgment attached special significance.

39.      The Court concluded that ‘the concept of “use of vehicles” … covers any use of a vehicle that is consistent with the normal function of that vehicle’. (24)

40.      Vnuk thus calls for a broad and uniform interpretation of the autonomous concept of ‘use of vehicles’ which makes it possible to cover by compulsory insurance damage caused by accidents in public or private spaces, provided that the vehicle involved, designed as a means of transport, was used for that purpose.

41.      It follows that the national court is required to ascribe exactly the same content to the concept of use, as set out in Vnuk, irrespective of the meaning ascribed by domestic law. It is therefore for the national court to interpret domestic law, so far as possible, in order to achieve the result sought by the directive and to ensure the full effectiveness of EU law in order to determine the dispute before it. (25)

42.      Accordingly, in the light of the foregoing considerations, it must be concluded that the concept of ‘use of vehicles’, within the meaning of the first paragraph of Article 3 of Directive 2009/103, is an autonomous concept of EU law which must be interpreted in a uniform manner in all Member States, having regard to the use of the vehicle in accordance with its normal function.

43.      Although, to that effect, I was proposing to give a negative reply to the first question referred for a preliminary ruling, I think it is necessary, due to the individual circumstances of the accident in question, the wording of the second question submitted by the referring court and the parties’ written and oral observations, to clarify the meaning and scope of the definition of the concept of ‘use of vehicles’ reached in Vnuk.

44.      According to settled case-law, it is for the Court to provide the national court with an answer which will be of use and to enable it to determine the case before it, while observing the clear separation of functions between the Court and the national court, the latter alone having jurisdiction to find and assess the facts in the main proceedings and to interpret and apply national law. (26)

45.      Furthermore, contextual factors must be taken into consideration since concerns relating to the scope of Vnuk were expressed shortly after it was delivered. Some Member States, especially those whose domestic law provided that the concept in question was restricted to road use alone, have commented that they have serious misgivings as to the potential practical consequences of that judgment. (27) The Commission itself stated that Vnuk might have a significant impact, particularly in terms of increased insurance premiums. (28) In the impact assessment it drafted, the Commission claimed that it was necessary to submit a proposal for a directive, amending Directive 2009/103, in order to limit its scope, particularly as regards accidents that are the result of agricultural, industrial, sporting or even fairground activities, while maintaining a high level of protection for the victims of accidents caused by motor vehicles.

C.      Requirement for the vehicle to be used in accordance with its normal function

46.      The different written and oral observations have demonstrated the need to begin by clarifying the context in which this requirement was established by the Court in Vnuk.

47.      It is appropriate to consider, first of all, the following facts: ‘when bales of hay were being stored in the loft of a barn, a tractor to which a trailer was attached, which was reversing in the courtyard of the farm in order to position the trailer in that barn, struck the ladder on which Mr Vnuk had climbed, causing him to fall.’ (29)

48.      The points of law under discussion were summarised as follows: ‘before the referring court, Mr Vnuk submits that the concept of “use of a vehicle in traffic” cannot be restricted to journeys on public roads and that, in addition, at the time the harmful event at issue in the main proceedings occurred, the unit formed by the tractor and its trailer did indeed constitute a vehicle that was moving and that what was involved was the end of the journey. By contrast, [the insurance company] submits that the case in the main proceedings concerns the use of a tractor not in its function as a vehicle for road use, but for work in front of a barn on a farm.’ (30)

49.      The Court also pointed out that ‘the referring court observes that the [Zakon o obveznih zavarovanjih v prometu (ZOZP) (Slovenian Law on compulsory motor vehicle liability insurance)] does not define the concept of “use of vehicles”, but that that lacuna is filled by the case-law. It states, in that regard, that the primary purpose of compulsory insurance under the ZOZP is to shift the cost of risk to society and the necessity of taking care of the needs of persons injured and passengers on public roads. The referring court takes the view that, according to Slovenian case-law, for the purpose of assessing whether specific damage is covered by compulsory insurance, the question whether it occurred on a public road is not, however, decisive. There is, however, no compulsory insurance cover when a vehicle is used as a machine, for example in a farming area, because, in such cases, there is no road use.’ (31)

50.      The referring court therefore enquired, given that the directives were silent on the matter, whether ‘it is thus possible to take the view that compulsory insurance covers damage caused by a vehicle in the context of road use alone or that it covers any damage, however connected to the use or the operation of a vehicle, irrespective of whether the situation may be defined as a situation involving road use’. (32)

51.      In that case, the focus of which was the place of use and the purpose of the vehicle’s use, the opinions expressed were substantially the same as those set out in the main proceedings: ‘the German Government and Ireland submit that the insurance obligation provided for in Article 3(1) of [Directive 72/166] relates only to situations involving road use and that it does not therefore apply to circumstances such as those at issue in the main proceedings. By contrast, the Commission is of the opinion that that provision applies to the use of vehicles, whether as a means of transport or as machines, in any area, both public and private, in which risks inherent in the use of vehicles may arise, whether those vehicles are moving or not.’ (33)

52.      Initially in its reply, the Court clarified the concept of vehicle within the meaning of Directive 72/166, pointing out that some types of vehicle may be excluded from the directive’s scope, if the Member States choose to do so. (34)

53.      Thereafter, as noted in points 36 et seq. of this Opinion, the Court examined the concept of ‘use of vehicles’ in order to reply to the question concerning the circumstances in which the vehicle had been used.

54.      By its judgment, the Court drew attention to the objective of the different directives on compulsory insurance, which goes well beyond liberalising the rules regarding the movement of persons and motor vehicles.

55.      The Court found in particular that it had ‘also repeatedly held that they also have the objective of guaranteeing that the victims of accidents caused by those vehicles receive comparable treatment irrespective of where in the European Union the accident occurred’. (35)

56.      As noted in point 38 of this Opinion, it made clear that ‘the view cannot be taken that the EU legislature wished to exclude from the protection granted by those directives injured parties to an accident caused by a vehicle in the course of its use, if that use is consistent with the normal function of that vehicle’. (36)

57.      It is therefore in the light of these general objectives that the Court held that the benefit of insurance had to apply where a vehicle, used as a means of transport, was involved in an accident, irrespective of factors relating to, in particular, the range of movement in the case of a manoeuvre, the public or private nature of the place of the accident, or even the characteristics of the vehicle in question, namely a tractor, which can also be used as a tool.

58.      Along the same lines, Advocate General Mengozzi envisaged that ‘damage caused by a vehicle during its use, in so far as it is used in accordance with the natural operation of a vehicle’, should be covered.

59.      That approach is criticised in view of the factual circumstances of the main proceedings which, according to the written and oral observations of the parties, except for the Commission, underline the need for clarification of the concept of ‘normal function of the vehicle’.

60.      Thus, in order to limit that concept to the use of a vehicle travelling on roads that are public or subject to legislation, I propose taking into account:

–        the specialist nature of the place where the vehicle was travelling on the ground that, unlike the place of the accident giving rise to Vnuk, the terrain in question was, although comparable to private land, not freely accessible because it was used for the purposes of military exercises;

–        the specific conditions of use, on the ground that the vehicle was used on terrain which could not be used by all vehicles, unlike a farm courtyard or car park, and that military-only headlights had been used; and

–        the fact that the vehicle involved in the accident was not designed to be used in the place in question on account of its unsuitable characteristics (4x4 vehicle being driven on a road reserved for track-laying vehicles).

61.      As regards the first of these three arguments, resulting in a distinction being drawn on the basis of the civil or military nature of the road, I take the view that the answer set out in Vnuk can be applied again since the observations are identical. Suffice it to note that the scope of Directive 2009/103 is not limited to specific roads, that that directive pursues a very broad objective of protection and that it gives Member States the option to exclude certain situations from the guarantee scheme it establishes, which the Kingdom of Spain did not exercise.

62.      In respect of the second argument, relating to the conditions of use, the same reasoning can be applied. The scope of the directive is not limited to roads suitable for all types of vehicle. Indeed, Spanish domestic law provides that such a situation does not result in exclusion of the guarantee. Article 2(1) of the Regulation on compulsory insurance also provides for cases where a road unsuitable for traffic is nevertheless ‘in general use’.

63.      Consideration of these two arguments leads me to find that the criterion relating to the place of use cannot be associated with the criterion relating to the ‘normal function of the vehicle’ and should instead be joined to the concept of ‘use’. Moreover, since the Court held that the directive applied to accidents occurring away from public roads, what is being suggested here is, in my view, a reversal of precedent.

64.      Regarding the last argument concerning the suitability of the vehicle for the terrain on which it is travelling, I note that this is a new issue compared with the case giving rise to Vnuk. There, discussions centred only on the purpose of the use of the tractor, whether or not as a tool.

65.      I consider that the circumstances of the case in the main proceedings clearly show that it would be paradoxical to uphold the criterion of the suitability of the vehicle for the place of use as a criterion enabling exclusion of the guarantee. It is not inconceivable that it might be necessary for a military vehicle to be driven in conditions that are not always suited to its technical characteristics, or even that that might be the objective of the training given to users of those vehicles. The oral observations indeed provided confirmation on this last point, explaining why the vehicle was travelling on the orders of a superior officer.

66.      Quite apart from these specific circumstances, the fundamental consideration deriving from Vnuk is still valid, namely the pursuit of the objective of general protection, in the absence of individual exclusions, where a vehicle is involved as a means of transport.

67.      In addition, I consider that all the circumstances in which the accident occurred may be sufficient to demonstrate that the Aníbal vehicle was used in accordance with the normal function of a vehicle, following the logic applied in Vnuk.

68.      A fortiori, is it not the normal function of a military vehicle to transport military personnel and to be driven by such personnel on terrain generally used for the purposes of military exercises?

69.      Were that not the case, what would be the purpose of the insurance taken out to cover damage caused by those vehicles, which are not designed principally for travel on roads always accessible to the public?

70.      I must also point out, as the Court did in paragraph 58 of Vnuk, that it is necessary to draw the appropriate conclusions from the fact that the Spanish Government did not exercise its right to exclude certain types of vehicle or certain persons from the specific guarantees, a right conferred by Article 5 of Directive 2009/103.

71.      I therefore take the view that, under the guise of discussions on the condition of the use of the vehicle according to its ‘normal function’, the general principle of guarantee, as soon as an accident has occurred in the course of the use of a vehicle for transport purposes, including the transport of persons, must not be called in question.

72.      Anything else would lead to a case-by-case approach, the limits of which were clearly illustrated at the hearing.

73.      That applies to the proposal to uphold the criterion of use that is ‘incidental’ to road driving or to public roads, so as not to exclude use of a vehicle in parking facilities or on private roads where what is involved is use at the end or at the beginning of a journey on public roads. The same is also true of the idea of taking account of the purpose of the journey, such as reproduction of the conditions of a military operation, or even of considering whether an authorisation exists.

74.      These suggestions moreover demonstrate that they entail greater legal uncertainty than restating, in the light of the circumstances of the case in the main proceedings, a straightforward commonsensical definition such as that applied in Vnuk, even though some may consider it tautologous. That definition is undoubtedly better suited to the autonomous nature of the concept, which must be applied uniformly, having regard to the highly protective objective of Directive 2009/103.

75.      Consequently, in reply to the second question, I am of the opinion that, in circumstances such as those at issue in the main proceedings, the requirement concerning the use of the vehicle in accordance with its normal function cannot be assessed in the light of the terrain on which the vehicle was travelling.

 V.      Conclusion

76.      In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Audiencia Provincial de Albacete (Provincial Court of Albacete, Spain) as follows:

1.      Since the concept of ‘use of vehicles’, appearing in the first paragraph of Article 3 of Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability, was framed as an autonomous concept of EU law, it must be given a uniform interpretation in all Member States, having regard to the vehicle’s use in accordance with its ‘normal function’. The onus is on the national court to interpret the body of rules, such as those at issue in the main proceedings, so as to ensure that full practical effect is given to the obligation in respect of insurance against civil liability for motor vehicles.

2.      In circumstances such as those at issue in the main proceedings, that normal function cannot be assessed in the light of the terrain on which the vehicle was travelling.


1      Original language: French.


2      OJ 2009 L 263, p. 11.


3      The insurance company was known as ‘Chartis Europe, Sucursal en España’ until 10 December 2012.


4      Hereinafter, ‘compulsory insurance’.


5      C‑162/13, ‘Vnuk’, EU:C:2014:2146.


6      OJ 1972 L 103, p. 1.


7      OJ 1984 L 8, p. 17.


8      OJ 1990 L 129, p. 33.


9      OJ 2000 L 181, p. 65.


10      OJ 2005 L 149, p. 14.


11      That article reproduces Article 4 of Directive 72/166 in identical terms.


12      BOE No 267 of 5 November 2004, p. 36662, ‘the LRCSCVM’.


13      BOE No 222 of 13 September 2008, p. 37487, ‘the Regulation on compulsory insurance’.


14      The characteristics of the vehicle can be consulted on the website of the Spanish Ministry of Defence at the following address: http:/www.ejercito.mde.es/materiales/vehiculos/Anibal.html


15      See, in that regard, point II(b) of Annex XVIII to the Reglamento General de Vehículos (General Regulation on vehicles), approved by Royal Decree No 2822/1998 of 23 December 1998 (BOE No 22 of 26 January 1999, p. 3440).


16      A list of derogations can be consulted at the following internet address: http://ec.europa.eu/finance/insurance/docs/motor/list-exempt-5th-dir_en.pdf. The list shows that 19 Member States have excluded military vehicles belonging to the State or, more specifically, vehicles used for military purposes. The frequency with which recourse is had to that possibility is the reason why recital 44 of the directive refers to military vehicles and draws attention to the information obligation of the body responsible for covering the risk.


17      Namely the insurer, Ireland, the Spanish Government and the Commission.


18      See, in that regard, judgment of 22 September 2016, Microsoft Mobile Sales International and Others (C‑110/15, EU:C:2016:717, paragraphs 18 and 19).


19      See recital 1 and Article 29 of that directive.


20      See paragraphs 43 to 45 of Vnuk.


21      See paragraph 46 of Vnuk and the case-law cited.


22      See paragraph 52 of Vnuk.


23      See paragraphs 53 to 55 of Vnuk.


24      Paragraph 59 of Vnuk. Compare with paragraph 56 of the judgment: ‘In the light of all of those factors, and in particular of the objective of protection pursued by [Directive 72/166 and Directive 90/232], the view cannot be taken that the EU legislature wished to exclude from the protection granted by those directives injured parties to an accident caused by a vehicle in the course of its use, if that use is consistent with the normal function of that vehicle.’


25      See, to that effect, judgment of 24 January 2012, Dominguez (C‑282/10, EU:C:2012:33, paragraph 24 and the case-law cited).


26      See judgment of 26 April 2017, Farkas (C‑564/15, EU:C:2017:302, paragraphs 38 and 39 and the case-law cited).


27      See, in particular, paragraphs 1 to 4 of the Technical consultation on motor insurance: Consideration of the European Court of Justice ruling in the case of Damijan Vnuk v Zavarovalnica Triglav d.d (C162/13) of the UK Department for Transport, available at the following internet address: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/581193/motor-insurance-vnuk-v-triglav.pdf


28      See the impact assessment of the Commission of 8 June 2016 on the scope of Directive 2009/103, available at the following internet address: http://ec.europa.eu/smart-regulation/roadmaps/docs/2016_fisma_030_motor_insurance_en.pdf (section A, ‘Context’, paragraph 6).


29      See paragraph 19 of Vnuk.


30      See paragraph 22 of Vnuk.


31      See paragraph 23 of Vnuk.


32      See paragraph 24 of Vnuk.


33      See paragraphs 34 and 35 of Vnuk.


34      See paragraph 40 of Vnuk.


35      See paragraph 50 of Vnuk and the case-law cited.


36      See paragraph 56 of Vnuk.

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