OPINION OF ADVOCATE GENERAL

TRSTENJAK

delivered on 7 December 2010 (1)

Case C-484/09

Manuel Carvalho Ferreira Santos

v

Companhia Europeia de Seguros, SA

(Reference for a preliminary ruling from the Tribunal da Relação Porto (Portugal))

(Directives 72/166/EEC, 84/5/EEC and 90/232/EEC – Insurance against civil liability in respect of motor vehicles – Regulation of civil liability for loss or injury arising from traffic accidents involving motor vehicles – Limitation of the claim for compensation from the compulsory insurer due to the contribution of one of the drivers responsible for an accident to the damage – Impossibility of establishing each driver’s contribution to the cause of the accident – Liability for risk)

I –  Introduction

1.        Pursuant to Article 234 EC, (2) the Portuguese Tribunal da Relação Porto (Court of Second Instance, Porto) has referred a question concerning the interpretation of Directives 72/166/EEC, (3) 84/5/EEC (4) and 90/232/EEC (5) to the Court of Justice. In that question, the referring court is essentially seeking information as to whether the directives cited preclude a national civil law provision which, in the event of contributory negligence on the part of the injured party, permits liability to be apportioned in accordance with the extent to which the risk posed by each vehicle contributed to the loss, with the consequence that it has the effect of reducing the amount of the accident victim’s claim for compensation against the motor vehicle civil liability insurer.

2.        This question arises in the context of a legal dispute between Mr Carvalho and Companhia Europeia de Seguros, SA, a civil liability insurance company, concerning the full recovery of the material and non-material damage which he suffered as a result of a road traffic accident. Having regard to the fact that the direct application of the abovementioned national provision would result in the amount of the claim for compensation being reduced by half, the question raised as to the compatibility of this national provision with European Union law has been shown to require clarification.

II –  Legislative framework

A –    European Union law (6)

3.        In the year 1972 the European Union legislature started on the task of approximating the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles by means of directives.

4.        The First Directive provides for the abolition of checks on green cards at frontiers and the introduction of civil liability insurance which covers loss or injury caused in the territory of the Community in all Member States.

5.        Proceeding on the principle that the victims of traffic accidents should be able to recover compensation from a solvent liable party if liability is established, Article 3(1) of the First Directive provides:

‘Each Member State shall ... 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.’

6.        Article 3(2) of the First Directive further provides, inter alia, as follows:

‘Each Member State shall take all appropriate measures to ensure that the contract of insurance also covers:

‑ according to the law in force in other Member States, any loss or injury which is caused in the territory of those States; ...’

7.        With the Second Directive, the Community legislature intended to approximate the disparate approaches to the content of that compulsory insurance in order to provide victims of traffic accidents with a minimum level of protection and to reduce the disparities existing in the Community as to the extent of this insurance.

8.        Article 2(1) of the Second Directive states:

‘Each Member State shall take the necessary measures to ensure that any statutory provision or any contractual clause contained in an insurance policy issued in accordance with Article 3(1) of Directive 72/166/EEC, which excludes from insurance the use or driving of vehicles by:

– persons who do not have express or implied authorisation thereto, or

– persons who do not hold a licence permitting them to drive the vehicle concerned, or

– persons who are in breach of the statutory technical requirements concerning the condition and safety of the vehicle concerned,

shall, for the purposes of Article 3(1) of Directive 72/166/EEC, be deemed to be void in respect of claims by third parties who have been victims of an accident.

However the provision or clause referred to in the first indent may be invoked against persons who voluntarily entered the vehicle which caused the damage or injury, when the insurer can prove that they knew the vehicle was stolen.

… ’

9.        The Third Directive was adopted in order to clarify some provisions relating to civil liability insurance, since significant disparities still existed regarding the extent of insurance cover provided.

10.      According to the fifth recital in the preamble to the Third Directive, gaps existed (in particular) concerning the compulsory insurance cover of motor vehicle passengers in certain Member States. In order to protect that particularly vulnerable category of potential victims, it was the intention to fill such gaps.

11.      Finally Article 1 of the Third Directive provides:

‘Without prejudice to the second subparagraph of Article 2(1) of Directive 84/5/EEC, the insurance referred to in Article 3(1) of Directive 72/166/EEC shall cover liability for personal injuries to all passengers, other than the driver, arising out of the use of a vehicle.

…’

12.      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, (7) which came into force on 8 October 2009, now consolidates the abovementioned directives, which are thus no longer in force. Since the events which gave rise to the main proceedings took place long before Directive 2009/103 came into force, only the abovementioned directives are applicable to the main proceedings.

B –    National law

13.      The provisions of the Portuguese Código Civil (Portuguese civil code) which are relevant to the main proceedings state as follows:

14.      Article 503(1): ‘The person with effective control of any motor vehicle and who uses it in his own interests, even if acting through an agent, is liable for the damage resulting from the risks posed by the vehicle itself, even when the latter is not in use.’

15.      Article 504(1): ‘The liability for damage caused by vehicles shall benefit third parties in addition to those travelling in the vehicle.’

16.      Article 506(1): ‘If a collision between two vehicles causes damage in relation to one or both thereof, and neither driver is at fault in the accident, liability shall be apportioned in accordance with the extent to which the risk posed by either vehicle contributed to the damage; if the damage was caused by only one of those vehicles, without any fault on the part of either driver, only the person who caused that damage is obliged to pay compensation.’

17.      Article 506(2): ‘In the event of doubt, both vehicles shall be regarded as having contributed equally to the damage, and the drivers as equally at fault.’

III –  Facts, main proceedings and questions referred for a preliminary ruling

18.      A traffic accident occurred on 5 August 2000 involving Mr Carvalho, the driver and owner of a moped, and a car which was insured against civil liability by Companhia Europeia de Seguros, SA. The accident had serious consequences for Mr Carvalho, since he suffered cranioencephalic trauma and has been unable to work since then.

19.      Since neither of those involved in the accident could be proven to have been at fault, according to the referring court’s statements the requirements for the obligation to pay compensation on the basis of liability for risk are met in accordance with domestic Portuguese law. That strict liability also works to the benefit of Mr Carvalho as the victim of the accident.

20.      The referring court points out that, in cases such as the present one, in which neither of the drivers is liable for the accident on the basis of fault, Portuguese law requires the provision in Article 506 of the Código Civil to be applied, which means that the compensation payable to the injured party is to be reduced in proportion to the extent to which he contributed to the accident and the resulting damage, both vehicles being regarded in the event of doubt as having contributed equally to the damage. Therefore if the obligation of the other party involved in the accident to pay compensation is limited, the injured party may demand only the commensurately lower sum from the motor vehicle civil liability insurer of the other party involved in the accident.

21.      The Tribunal da Relação Porto, which must decide on the amount of the compensation in the main proceedings, expresses doubt with regard to the compatibility of that national provision with European Union law in the light of the interpretation of the First, Second and Third Directives in the case-law of the Court of Justice. It has therefore stayed the proceedings and referred the following question to the Court of Justice for a preliminary ruling:

‘In a motor vehicle collision in which none of the drivers is liable for the accident on the basis of fault, and which has caused personal injury and material loss to one of the drivers (the injured party claiming compensation), is it contrary to Community law, in particular Article 3(1) of the First Directive (Directive 72/166/EEC), Article 2(1) of the Second Directive (84/5/EEC) and Article 1 of the Third Directive (90/232/EEC), as those provisions have been interpreted by the Court of Justice of the European Communities, for it to be possible to apportion liability for risk (Article 506(1) and (2) of the civil code) with a direct impact on the amount of compensation to be awarded to the injured party for the material and non‑material loss resulting from the personal injuries suffered (since that apportionment of liability for risk will entail a commensurate reduction in the amount of compensation)?’

IV –  Procedure before the Court of Justice

22.      The order for reference dated 24 November 2009 was lodged at the Registry of the Court of Justice on 30 November 2009.

23.      Written observations were submitted by the Governments of the Portuguese Republic, the Federal Republic of Germany, the Republic of Austria, the Italian Republic and the Commission within the period indicated in Article 23 of the Statute of the Court.

24.       As none of the parties applied for the oral procedure to be opened, it was possible to prepare the Opinion in this case after the general meeting of the Court on 5 October 2010.

V –  Main arguments of the parties

A –    Admissibility of the request for a preliminary ruling

25.      The German Government considers the request for a preliminary ruling to be partially inadmissible, namely in so far as the question referred relates to Article 1 of the Third Directive. In its view, that provision is of no relevance to the decision in the main proceedings, since it merely regulates the extension of the compulsory insurance cover under motor vehicle civil liability insurance for personal injuries to all passengers, other than the driver. However, the main proceedings are based on the facts of a case in which it is not a passenger who was injured, but a third party. It submits that, in so far as it relates to the interpretation of Article 1 of the Third Directive, the referring court’s question is unconnected with the legal dispute on which the reference for a preliminary ruling is based.

B –    The question referred itself

26.      The submissions of the parties to the proceedings concern, on the one hand, the scope of the directives and on the other hand, the scope of the judgment in Candolin and Others. (8)

1.      Scope of the directives

27.      The Portuguese Government submits that the directives at issue do not contain any provisions relating to civil law liability. It follows from that, in its opinion, that the question referred is not relevant with regard to Article 506 of the Código Civil, which restricts itself merely to establishing the liability for the damage arising, whilst the connection between the claim for compensation and the civil law liability is regulated in Article 483 of the Código Civil.

28.      The German, Austrian and Italian Governments assert that it must be inferred both from the regulatory purpose and the wording of the three directives that they are not aimed at harmonising the civil law provisions on liability in the Member States.

29.      On the contrary, the European Union legislature intended to regulate the scope of motor vehicle civil liability insurance in order to guarantee a minimum level of protection for the victims of traffic accidents by approximating the existing disparities in relation to the extent of this insurance. The directives at issue did not contain, in the view of those governments, any provisions for the purpose of determining the nature of fault-based liability and no-fault liability in civil law. That aspect remains within the competence of the Member States as Community law stands at present, as the Court of Justice found in its judgment in Mendes Ferreira and Delgado Correia Ferreira. (9)

30.      For those reasons the question of the compatibility of the national law criteria for attributing liability with European Union law did not arise. Concerning that question, the directives required, as a prerequisite, a civil law claim for compensation regulated by the Member States, since the substantive law liability determines the extent of the obligations under the civil liability insurance and not vice‑versa: the civil liability insurance does not determine the extent of liability.

2.      Scope of the judgment in Candolin and Others

31.      The Portuguese Government points out that it follows from Candolin and Others that the provisions of the directives at issue do not preclude a Member State from providing, in a national provision based on general and abstract criteria, for an injured party’s claim for compensation to be reduced in proportion to his own contributory negligence. To the extent that those provisions required an assessment of the particular case, Article 506 of the Código Civil was to be regarded as compatible with European Union law.

32.      The German Government asserts that Candolin and Others does not in principle preclude Member States from providing for a limitation on the basis of an assessment of the particular case, provided that such an assessment was consistent with the principle of proportionality, which is the case in the present proceedings. The assessment of proportionality was to be based on the fact that the law on liability was in essence based on the principle that the person causing the damage should be liable only for the damage for which he could be held responsible, the injured party bearing the responsibility for the remainder himself. The injured party can therefore demand compensation only for the damage inflicted on him by the person causing the damage. On the other hand, the injured party cannot demand any compensation for damage for which he himself is responsible. The same also applies to the civil liability insurance, which covers the civil liability of the person causing the damage. That means that the insurance company had to pay only the same amount as the person who caused the damage would have to pay.

33.      The Austrian and the Italian Governments are of the opinion that Candolin and Others cannot be applied to the main proceedings.

34.      Those Governments point out that it follows from the grounds of that judgment that it applied only to those cases in which passengers suffered a road traffic accident. That was apparent in particular from the statements concerning the aims of the directives, above all those of the Third Directive. The Austrian and the Italian Governments drew attention to the fact that the Third Directive was adopted with the aim, above all, of filling the gaps in civil liability insurance in some Member States for the benefit of passengers in order to protect that category of potential victims which was in particular need of protection. However, in the main proceedings the injured party was the driver himself.

35.      In addition, the Austrian and the German Governments point out that if the individual joint responsibility of the driver did not enter into the final assessment, the insurance company would have to cover claims which the injured party could not successfully enforce against the driver of a vehicle liable to pay compensation because of his joint responsibility under the principles of the national law on liability for risk.

36.      The Italian Government states that the extension of Candolin and Others to all categories of injured third parties would amount to imposing a penalty, namely to penalise the insurance company, especially since it would have to pay for damage for which the insured person was not responsible under the national law on compensation.

37.      The Commission confines itself to asserting that the abovementioned directives would preclude the national provision at issue in the main proceedings, especially since the limitation of the compensation for the victim is not even attributable to his joint responsibility for the damage arising, as was the case in Candolin and Others (10) and Farrell, (11) but to the division of liability in the absence of fault on the part of the victim, into equal parts.

VI –  Legal assessment

A –    Admissibility of the reference for a preliminary ruling

1.      New interpretation of the question referred

38.      The question referred is worded in such a way that by asking it the referring court would specifically like to know whether the provision in Article 506(1) and (2) of the Portuguese Código Civil ‘is contrary to’ European Union law. The Court has consistently held, however, that, except in an action for a declaration of a failure to fulfil obligations, it is not for the Court to rule on the compatibility of a national provision with Community law. That competence belongs to the national courts, if necessary after obtaining from the Court, by way of a reference for a preliminary ruling, such clarification as may be necessary on the scope and interpretation of European Union law. (12) The mutual respect for the respective competences of the Court of Justice and the national courts is the basis for their cooperation which is characterised by the proceedings for a preliminary ruling. (13)

39.      In order to facilitate the referring court’s assessment of the compatibility of national law with European Union law, the question referred may be given a new interpretation within the meaning of a request for the interpretation of European Union law under Article 234(1)(b) EC, namely associated with the question whether the provisions of the directives mentioned in the question referred preclude a provision such as that at issue in the main proceedings. The consideration below proceeds on the basis of that understanding of the question referred.

2.      Relevance of the question referred

40.      The request for a preliminary ruling must be regarded as partially inadmissible to the extent that by its question referred the national court requests the interpretation of Article 1 of the Third Directive.

41.      That provision is in fact on closer examination irrelevant to the decision in the main proceedings, since, as the German Government correctly observes, it is concerned merely with the extension of compulsory insurance cover under motor vehicle civil liability insurance to personal injuries to passengers with the exception of the driver. As can be inferred from the fifth recital in the preamble to the Third Directive, prior to the adoption of the directive there were gaps in the compulsory insurance cover of motor vehicle passengers in certain Member States with the consequence that the European Union legislature felt obliged, by means of that directive, to fill those gaps in order to protect that particularly vulnerable category of potential victims. That was reflected in Article 1(1) of the Third Directive, pursuant to which the insurance referred to in Article 3(1) of the First Directive covers liability for personal injuries to all passengers, other than the driver, arising out of the use of a vehicle. However, it must be pointed out that the main proceedings are not concerned with the rights of passengers, but obviously only with the rights of the driver himself. There are in fact no indications in the order for reference that other passengers were injured.

42.      In that context, it must be recalled that provided that the questions referred by the national courts relate to the interpretation of a provision of Community law, the Court of Justice is bound in principle to give a ruling unless it is obvious that the request is in reality designed to induce the Court to give a ruling by means of a fictitious dispute, or to deliver advisory opinions on general or hypothetical questions, or that the interpretation of Community law requested bears no relation to the actual facts of the main action or its purpose, or that the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. (14)

43.      In view of the fact that the national court has not explained in what way the interpretation of Article 1 of the Third Directive is connected to the subject-matter of the legal dispute and could therefore be relevant, in my opinion the Court of Justice does not need to express its view on that provision in the context of the interpretation of the directives.

B –    Examination of the question referred

1.      Introductory observations

44.      Before examining the actual question referred, first of all both the efforts at harmonisation in the field of motor vehicle civil liability insurance and second the more recent relevant case-law of the Court of Justice on the interpretation of the First, Second and Third Directives, with which the present case is essentially concerned, should be briefly presented. That presentation should serve the purpose of providing a better understanding of the set of problems in the present case.

a)      Harmonisation in the field of motor vehicle civil liability insurance

45.      The Europe-wide harmonisation of the extent of motor vehicle civil liability insurance was initiated by the European Convention on Compulsory Insurance against Civil Liability in respect of Motor Vehicles of 20 April 1959, which was drawn up within the framework of the Council of Europe. (15) It’s essential aims were the Europe-wide introduction of compulsory insurance for damage caused to persons and property; the granting to the injured party of a direct claim (the so-called ‘action directe’) against the civil liability insurer of the person causing the damage; laying down a European minimum level of insurance protection; the obligation of the Contracting States to establish a guarantee fund which compensates the accident victim even in the event that no motor vehicle civil liability insurer is available. However, the Treaty was ratified only by a few States and therefore did not acquire any great practical significance. (16) However, its aims were achieved later when the first three European Union directives were adopted.

46.      Today, the harmonisation of the Member States’ legal systems in the European Union is at an advanced stage in the field of motor vehicle civil liability insurance. There are now five directives relating to this field, which have been consolidated most recently by Directive 2009/103. On the one hand, those directives are aimed at making the free movement of persons by means of motor vehicles easier and at guaranteeing a uniform framework for the internal market in relation to motor vehicle civil liability insurance; on the other hand, they are concerned with improving the protection in insurance law of the victims of accidents in the European Union by creating a uniform minimum standard and making it possible for them to effectively enforce their claims for compensation.

47.      The objectives set by the European Union legislature were implemented by the following rules: the First Directive first of all provided for the introduction of insurance against civil liability in all Member States, covering loss or damage incurred in European Union territory. Originally, the Member States were left to regulate the extent of the liability covered and the conditions for the compulsory insurance, as a result of which some significant gaps in protection remained, especially for passengers. Later, the Second Directive provided for minimum provisions for the extent of the prescribed cover for damage to property and personal injuries, as a result of which there was a further approximation of the protection of road-users in the European Union. The Third Directive finally extended the personal scope to passengers in the motor vehicle other than the driver. The Fourth Directive, (17) which is not applicable in the main proceedings, essentially concerns the regulation of traffic accidents which have occurred outside the injured party’s country of origin. Under the Fourth Directive, in order to make it easier for the injured third party to enforce his claims, he is entitled to claim in his Member State of residence against a claims representative appointed there by the insurance undertaking of the party liable. (18) Finally, Directive 2005/14/EC (19) updated and improved the Community system of motor insurance, in particular by extending the right of direct action provided for in the Fourth Directive to all injured parties.

48.      However, that very advanced legislative activity at a European Union level should not obscure the fact that the Member States’ regulatory powers and the discretion which they enjoy in terms of transposition in the field of motor vehicle civil liability insurance continue to be very extensive as a result of the restricted and at the same time sector-specific scope of the directives, as a consequence of which, although there is still room for special rules under national law, at the same time the risk however also increases that precisely that multitude of national provisions derogate from the requirements of the directives and ultimately no longer correspond to the minimum standards of European Union law.

b)      The limits of the Member States’ regulatory power according to the more recent case-law of the Court of Justice

49.      Not least for that reason, whilst emphasising the aim of protecting victims expressed in the directives, (20) the Court of Justice has repeatedly urged the Member States to comply with such minimum standards, namely always when a risk of the exclusion or limitation of the claim for compensation on the part of the civil liability insurance company to the detriment of the injured third party arose. Lines of authority have accordingly been carefully established by the Court on a case-law basis.

50.      The judgments in Candolin and Others and Farrell, in which the Court of Justice pointed out to the Member States the European Union law limits on their regulatory power, are particularly relevant. In those cases, the Court first of all recalled its previous case-law, from which it is apparent ‘from the aim of the First, Second and Third directives, and from their wording, that they do not seek to harmonise the provisions of the Member States governing civil liability and that, as Community law stands at present, the Member States are free to determine the provisions of civil liability applicable to road accidents.’ (21)

51.      As the Court of Justice correctly held in Farrell, the obligation to provide insurance cover for passengers must be distinguished from the extent of the compensation to be made available to them in the event of their becoming victims of a road traffic accident. Whereas the former is guaranteed and defined by Community legislation, the latter is essentially governed by national law. (22) Against that background, it could in principle be argued that determining the extent of the compensation remains a matter for the Member States.

52.      Nevertheless, the Court of Justice has made it clear that ‘the Member States must exercise their powers in compliance with Community law and, in particular, with Article 3(1) of the First Directive, Article 2(1) of the Second Directive and Article 1 of the Third Directive, whose aim is to ensure that compulsory motor vehicle insurance allows all passengers who are victims of an accident caused by a motor vehicle to be compensated for the injury or loss they have suffered.’ (23)

53.      For that reason, the Court of Justice, whilst referring to the protective objective of the directives in both of the abovementioned judgments, recalled emphatically that ‘the national provisions which govern compensation for road accidents cannot, therefore, deprive those provisions of their effectiveness’. (24) Such would be the case, in the view of the Court of Justice, ‘where, solely on the basis of the passenger’s contribution to the occurrence of his injuries, national provisions, established on the basis of general and abstract criteria, either denied the passenger the right to be compensated by the compulsory motor vehicle insurance or limited such a right in a disproportionate manner.’ (25) In the view of the Court of Justice, the amount of a victim’s compensation may be limited ‘only in exceptional circumstances ... on the basis of an assessment of his particular case.’ (26)

2.      The actual question referred

54.      The two main points of law which appear in the present legal dispute and which must be examined below are the questions (a) whether the provision which is at issue in the main proceedings comes within the scope of the directives and (b) what specific consequences the abovementioned case-law has.

a)      Applicability of the directives

55.      It appears essential to me to point out, prior to examining the applicability of the directives, that the system of civil liability insurance is characterised by a series of different legal relationships which must be strictly distinguished from one another. That system constitutes, when viewed overall, a triangular relationship between the injured third party, the insured person who caused the damage and the insurance company. The legal relationships between the insurance company and the person who caused the damage, who is at the same time the insured, are the subject of the so-called ‘insurance or cover relationship’, whereas the so-called ‘civil liability relationship’ concerns the legal relationships between the person who caused the damage and the injured third party. (27) It is also necessary to distinguish from those legal relationships the right of direct action, namely the compensation claim against the insurance company which the legal system confers on the injured third party. Therefore examining the question whether the provision at issue in the main proceedings comes within the scope of the directives primarily involves clarifying precisely which legal relationship those legal provisions are intended to regulate.

i)      Civil law liability provisions not covered

56.      The directives regulate several areas of motor vehicle civil liability insurance law. Their essential regulatory purpose may be described as typical of civil liability insurance law to the extent that it concerns, on the one hand, the protection of the person subject to compulsory insurance from unforeseeable liability risks, and on the other hand, however, at least also concerns the protection of the injured third party. (28) The latter finds expression, for example, in the seventh recital in the preamble to the Second Directive, pursuant to which it must be ensured ‘in the interest of victims that the effects of certain exclusion clauses [are] limited to the relationship between the insurer and the person responsible.’

57.      Irrespective of the fact that the directives protect third parties, their regulatory purpose remains however – as the German Government correctly states (29) – primarily restricted to motor vehicle civil liability insurance law, which regulates the cover relationship in this respect, namely the relationship between the insurance company and the insured.

58.      It must also be taken into account that the European Union legislature grants broad discretion with regard to implementation to the Member States in order to achieve the objectives of the directives. Thus, pursuant to Article 3(1) of the First Directive, they may take ‘all appropriate measures’ to ensure that civil liability in respect of the use of vehicles normally based in their territory is covered by insurance. In so doing, the European Union legislature allows them to determine, in the context of these measures, both the ‘the extent of the liability covered’ and the ‘terms and conditions of the cover’ of that insurance. There are requirements in the directives merely in relation to the question of what types of loss or injury the insurer must cover and as to which injured persons the insurer must pay compensation.

59.      Neither the wording nor the regulatory purpose of the directives give any indication of an intention on the part of the European Union legislature partially to harmonise the law of compensation regulating the relationship between the insured person and the injured party. The opposite is in fact the case, as Article 3(2) of the First Directive clearly shows, which establishes that the question whether damage covered by a contract of insurance has occurred must be answered ‘according to the law in force in other Member States’. The wording of that provision shows that it is the European Union legislature’s express wish to continue to leave the law on liability within the competence of the Member States. In that respect, I must agree with the opinion of the Italian Government, (30) pursuant to which neither the substantive law criteria as regards the assessment of liability for the damage arising as a result of a road traffic accident nor the extent of the liability come within the scope of the directives.

60.      The settled case-law of the Court of Justice which is cited above, pursuant to which the directives are not intended to harmonise the civil liability laws of the Member States, (31) is therefore not open to criticism from a legal perspective. (32) That is also confirmed by Mendes Ferreira and Delgado Correia Ferreira, (33) in which the Court of Justice held that the directives for example do not say anything about the type of civil liability - liability for risk or fault-based liability – which must be covered by insurance. Therefore, the Court of Justice correctly concluded in that judgment that in the absence of any Community provisions, it is in principle for the Member States to lay down the system of civil liability applicable to road traffic accidents. (34) Having regard to the fact that the Portuguese provision at issue in the main proceedings should be categorised on the basis that it forms part of the system of national civil law provisions on compensation, it should not be regarded as being covered by the scope of the directives.

61.      A contrary view may not be supported either by a reference to Candolin and Others or Farrell, especially since the legal disputes on which those judgments were based did not concern civil law liability provisions but rather national statutory provisions which regulated motor vehicle civil liability insurance law. (35) Those rules provided, inter alia, that the injured party’s claims against the civil liability insurance company may be reduced or excluded in certain circumstances, for example if as a passenger in a motor vehicle he knew or should have known about the drunken state of the driver of the motor vehicle, or where he suffers damage as a result of being a passenger in a motor vehicle which was not designed or built with space for a passenger to sit. The subject-matter of the abovementioned statutory provisions was the content of the civil liability insurance contract, since they significantly limited the insurer’s compulsory insurance cover but did not affect the civil liability itself under civil law. This is also the reason why for instance in Candolin and Others, the person causing the damage remained liable to provide compensation without restriction in conformity with the applicable national civil law provisions. (36) The same obviously also holds true in Farrell. (37) The factual and legal position in the present legal dispute is different in that respect and cannot be equated with that in Candolin and Others and Farrell.

62.      It may accordingly be concluded that the provisions of the directives are not aimed at harmonising the civil law provisions on liability and therefore that the latter are at least not directly subject to the requirements of European Union law.

ii)    Right of direct action ancillary to the civil law liability provisions

63.      On the other hand, exclusive application of European Union law to that civil law provision could possibly obscure the point that the subject-matter of the dispute in the main proceedings is not in fact the civil law compensation claim in the relationship between private individuals. On the contrary, the dispute in the main proceedings concerns the injured party’s claim against the insurance company. That may be subject to the requirements of European Union law, unlike the civil law liability claim.

64.      On that point, consideration must first be given to whether that claim can be logically and legally distinguished from the civil law liability claim. An objection could be made in that respect to the effect that the claim against the civil liability insurance company is ancillary to the civil law compensation claim to the extent that the substantive law liability determines the extent of the insurance company’s performance obligation. Responsibility in terms of legal liability is normally a prerequisite for the apportionment of damage between collective insurers and is associated with it. (38) The existence of responsibility in terms of legal liability as a first step is the basic prerequisite for a right of direct action arising against the insurance company as a second step. (39)

65.      That also corresponds to the arguably prevailing doctrine in the Member States’ legal systems, pursuant to which the right of direct action is determined by the extent of the liability of the person causing the damage. (40) That does not result in any inequitable reduction in the protection of the injured party which is the aim of the right of direct action, since the right of direct action is intended to protect the victim of an accident in particular from the insolvency of the person causing the damage and make available to him a solvent liable party in the form of the insurance company. If that protective purpose under substantive law is borne in mind, it becomes clear that the right of direct action is not in any way aimed either at any separation from the liability of the person who caused the loss which is provided for in civil law or an extension of that liability.

66.      On the other hand, it should be recognised that the right of direct action against the insurance company is an independent legal claim with its own characteristic value judgments. (41) Whereas in the event of a civil law compensation claim the concept of compensating for a disadvantage which has been suffered is at the forefront (iustitia commutativa), (42) the claim directed against the insurance company is at least also influenced by the concepts of the apportionment of risk, solidarity and therefore ultimately by elements of Aristotle’s (43) notion of distributive justice (iustitia distributiva). (44) The main idea behind the so-called ‘action directe’ is namely safeguarding and protecting the injured party who is usually the weaker party. (45)

67.      Separating the injured party’s claim against the insurance company from the civil law liability claim would however lead to scarcely comprehensible contradictions concerning value judgments, in particular if the claim against the insurance company was more extensive than the substantive law liability claim. If for example possible contributory negligence of the injured party were to be taken into account only for the purposes of the civil law assessment of the loss or injury, but not for the purposes of the assessment of the insurance company’s performance obligation, then the civil liability insurance – as the Austrian (46) and German (47) Governments rightly point out – would have to cover claims which the injured party could not successfully enforce against the driver of a vehicle liable to pay compensation because of his joint responsibility under the principles of national law on liability for risk. However, there is no indication in the directives of any intention to provide the injured party with more extensive claims, by means of civil liability insurance, than would have been covered under civil liability insurance in respect of the person causing the damage.

68.      Moreover, to grant the injured party a more extensive compensation claim than that provided for in the substantive law on liability does not appear either suitable or appropriate, and still less intended by the European Union legislature in order to achieve the objective mentioned in the third recital of the preamble to the First Directive, namely the free movement of motor vehicles and persons within the European Union. The directives were adopted on the basis of those legal bases which were intended to facilitate the approximation of laws, namely in the interests of bringing about the free movement of goods and persons necessary in order to create a common market. However, the disparities between national requirements mentioned in the second recital of the preamble to the First Directive, which impede the free movement of motor vehicles and persons within the Community will not be removed by ensuring that the right of direct action against the insurance company is always recognised to the full extent regardless of the possible joint liability of the injured party owing to fault or liability for risk – for example an operational hazard typically associated with the use of a moped. That is what Mr Carvalho’s claim in fact amounts to ultimately.

69.      The favourable treatment of the injured party, which would arise if he was put in a better position in relation to the insurance company than if he had to enforce his compensation claim against the very person who caused the damage, would not be conducive to removing the typical limitations which arise from the different provisions of insurance law (e.g. exclusions of liability in favour of the civil liability insurance companies) and at which the directives are actually aimed. The regulatory purpose of the directives is that alone. (48) The possible reduction or even exclusion of compensation claims on the basis of value judgments of the national civil law on liability does not constitute an ‘impediment’ to the free movement of goods and persons, which should be remedied by the directives. Against that background, the disparities in the Member States’ provisions on liability are a fact which must ultimately be accepted in the current state of European Union law.

70.      Granting a more extensive compensation claim than that provided for in the substantive law on liability would accordingly clearly exceed what the European Union legislature regarded as suitable and appropriate in order to achieve the aim of the free movement of motor vehicles and persons. In view of that clear legal position, it appears impossible to me to interpret the directives to the effect that a possible reduction or exclusion of the right of direct action against the insurance company could be opposed. Admittedly the Court rightly emphasised in Candolin and Others and Farrell, that ‘the national provisions which govern compensation for road accidents [cannot] deprive those provisions of their effectiveness.’ (49) However, a superficial reading of that statement could easily result in misunderstandings, not least because of its generalised formulation. A reasonable interpretation of that sentence, taking into account the relevant factual and legal position evaluated there, makes clear that the Court of Justice was referring exclusively to those national statutory provisions which regulated the cover relationship between the insurance company and the insured, namely in such a manner that the injured party’s claims against the civil liability insurance company were reduced or even excluded in certain circumstances. (50) The comments of the Court of Justice accordingly related solely to the law on motor vehicle civil liability insurance, which is also the regulatory purpose of the directives, but not at all to the national law on liability. The Italian Government’s request to distinguish clearly between those two legal subjects when examining the present case (51) is justified in this respect.

71.      If the extract referred to above from Candolin and Others and Farrell were to be understood broadly, namely as meaning that the national provisions on liability were also covered, that would result in a significant intrusion into the legal systems of the Member States. For if that were the case, every national provision on liability which determined the extent of the civil law compensation claim of an injured party would automatically be subject to compatibility with the criteria in the Candolin case-law, (52) undermining the principle of legal certainty, (53) especially since civil liability insurers would not be in a position to determine in advance the damage for which they would have to pay and the extent of their obligations. Such a result would not be acceptable from a practical legal perspective.

72.      It follows from the above considerations that the ancillary character of the injured party’s right of direct action against the civil liability insurance company in relation to the civil law liability claim precludes a separation of the right of direct action, with the effect that the latter does not come within the scope of the directives, whether directly or as a consequence of an interpretation of the spirit and purpose of the directive.

iii) Interim conclusion

73.      It follows from all of the foregoing that the national provision which is at issue in the main proceedings does not fall within the scope of the directives. Consequently it is also not precluded by it.

b)      Applicability of the Candolin case-law

74.      The above examination has shown that the factual and legal position in the present case differs significantly from that in the Candolin and Others and Farrell cases. Those judgments related to a field which was still subject to the scope and consequently the harmonising effect of the directives, namely the law on motor vehicle civil liability insurance. That is not the case here, since the civil law on liability is of course expressly excluded. An interpretation of the directives opposing a possible reduction or exclusion of the right of direct action against the insurance company is also excluded for the reasons already stated. Consequently, that case-law cannot be applied to the present case.

C –    Summary conclusion

75.      To summarise, it must be concluded that the First, Second and Third Directives do not preclude a national provision of civil law such as that in Article 506 of the Portuguese Código Civil, which in a situation such as that in the main proceedings, where it is not possible to establish the contributions to the cause of the accident, results in the injured party’s claim arising from liability for risk being reduced by a flat rate of 50%.

VII –  Conclusion

76.      In view of the above considerations, I propose that the Court of Justice should answer the question referred by the Tribunal da Relação Porto as follows:

The First 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, 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 and the 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 do not preclude a national provision of civil law, which in a situation such as that in the main proceedings, where a motor vehicle collision has occurred in which none of the drivers can be shown to be at fault for the accident, and which has caused personal injury and material loss to one of the drivers, results in the injured party’s claim arising from liability for risk being reduced by a flat rate of 50%.

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1 – Original language of the Opinion: German

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Language of the case: Portuguese

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2 – Pursuant to the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community of 13 December 2007 (OJ 2007 C 306, p. 1), the reference for a preliminary ruling is now governed by Article 267 of the Treaty on the Functioning of the European Union.

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3 – 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 (OJ, English Special Edition 1972(II), p. 360), (‘the First Directive’).

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4 – 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 Second Directive’).

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5 – 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 (OJ 1990 L 129, p. 33) (‘the Third Directive’).

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6 – According to the terms used in the TEU and the TFEU, the term ‘European Union law’ is used as an umbrella term for Community law and European Union law. Where individual primary law provisions are referred to in what follows, the applicable provisions ratione temporis are cited.

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7 – OJ 2009 L 263, p. 11.

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8 – Case C-537/03 Candolin and Others [2005] ECR I-5745.

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9 – Case C‑348/98 Mendes Ferreira and Delgado Correia Ferreira [2000] ECR I‑6711, paragraph 29.

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10 – Cited in footnote 8 above.

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11 – Case C‑356/05 Farrell [2007] ECR I‑3067.

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12 – Case C‑347/87 Triveneta and others v Commission [1990] ECR I-1083, paragraph 16 and Case C‑467/08 Padawan [2010] ECR I-0000, paragraph 61).

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13 – See my Opinion of 6 July 2010 in Case C‑137/08 Pénzügyi Lízing [2010] ECR I‑0000, in relation to the way in which tasks are divided between the Court of Justice and the national courts in connection with the interpretation and application of European Union law.

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14 – See Case C‑306/99 BIAO [2003] ECR I‑1, paragraph 89; Case C-217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 17; and Case C-48/07 Les Vergers du Vieux Tauves SA [2008] ECR I-10627, paragraph 17).

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15 – See Reichert-Facilidades, F., ‘Europäisches Versicherungsvertragsrecht?’ Festschrift für Ulrich Drobnig zum siebzigsten Geburtstag (published by Jürgen Basedow/Klaus J. Hopt/Hein Kötz), Tübingen 1998, p. 127.

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16 – See Lemor, U., Kommentar zur Kraftfahrtversicherung (published by Hans Feyock/Peter Jacobsen/Ulf Lemor), 3^rd edition, Munich 2009, 1^st part, paragraph 5.

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17 – 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 and amending Council Directives 73/239/EEC and 88/357/EEC (OJ 2000 L 181, p. 65).

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18 – As Schauer, M., ‘Bemerkungen zur Umsetzung der 4. Kfz-Haftpflicht-Richtlinie im österreichischen Recht’, Recht und Risiko – Festschrift für Helmut Kollhosser, Volume I (Insurance law), Karlsruhe 2004, p. 293, correctly states, the aim of the Fourth Directive was to give the injured party the chance of being able to enforce his claim in his Member State of residence. Thus, the Fourth Directive led to a considerable improvement in the protection of injured parties in accidents occurring abroad.

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19 – Directive 2005/14/EC of the European Parliament and of the Council of 11 May 2005 amending Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC and 90/232/EEC and Directive 2000/26/EC of the European Parliament and of the Council relating to insurance against civil liability in respect of the use of motor vehicles (OJ 2005 L 149, p. 14).

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20 – See Candolin (cited in footnote 8 above, paragraph 18 and Case C‑129/94 Ruiz Bernáldez [1996] ECR I‑1829, paragraph 20).

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21 – Candolin (cited in footnote 8 above, paragraph 24) and Farrell (cited in footnote 11 above, paragraph 33). See Mendes Ferreira and Delgado Correia Ferreira (cited in footnote 9 above, paragraphs 23 and 29). See also on the interpretation of the First, Second and Third Directives with effect for the EFTA/EEA States, the case-law of the EFTA Court (in accordance with the principle of homogeneity in EEA law), including amongst others the judgment of the EFTA Court of 14 June 2001 in Case E‑7/00 Helgadóttir, paragraph 30, and of 20 June 2008 in Case E‑8/07 Nguyen, paragraph 24. The directives are also applicable to the EFTA/EEA States pursuant to No. 8, 9 and 19 in Annex IX to the EEA Agreement.

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22 – Farrell (cited in footnote 11 above, paragraph 32).

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23 – Candolin and Others (cited in footnote 8 above, paragraph 27).

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24 – Ibid. (paragraph 28) and Farrell (cited in footnote 11 above, paragraph 34). This case-law may be traced back to similar case-law of the EFTA Court, namely to the judgment of the EFTA Court of 17 November 1999 in Case E-1/99 Storebrandand Finanger, EFTA Court Report 1999, p. 119, paragraph 29, on which Advocate General Geelhoed apparently based his deliberations in his Opinion of 10 March 2005 in Candolin and Others.

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25 – Candolin and Others (cited in footnote 8 above, paragraph 29) and Farrell (cited in footnote 11 above, paragraph 35).

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26 – Candolin and Others (cited in footnote 8 above, paragraph 30) and Farrell (cited in footnote 11 above, paragraph 35).

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27 – See in relation to this Baumann, H., ‘Zur Überwindung des Trennungsprinzips im System von Haftpflicht und Haftpflichtversicherung’, Festgabe Zivilrechtslehrer 1934/1935 (published by Walther Hadding), Berlin 1999, p. 13.

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28 – See Looschelders, D., Münchener Kommentar zum Versicherungsvertragsgesetz (published by Theo Langheid/Manfred Wandt), 1^st edition 2010, Volume 1, Chapter 1, paragraph 117 and by Bar, C., ‘Das Trennungsprinzip und die Geschichte des Wandels der Haftpflichtversicherung’, Archiv für die civilistische Praxis, 1981, No. 181, p. 326.

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29 – See paragraph 10 of the written observations of the German Government.

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30 – See paragraph 13 of the written observations of the Italian Government.

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31 – See point 50 of this Opinion.

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32 – As further support for this view, in connection with this, the fact that recital 13 in the preamble to the Fourth Directive (which is not applicable here) expressly states that the provisions of the directives do not ‘[affect] ... the substantive law to be applied in each individual case’ should be evaluated. Schauer, M., loc. cit. (footnote 18), p. 294, considers that to provide grounds to suppose that the Fourth Directive does not change anything concerning applicable law on liability.

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33 – Cited in footnote 9 above.

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34 – Ibid., paragraph 28.

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35 – In Candolin and Others, the provisions of the Finnish statute on motor vehicle insurance (liikennevakuutuslaki) were under discussion. In Farrell, again the case concerned provisions relating to compulsory insurance, which were codified in the Irish statute on road traffic (Road Traffic Act) and in the regulation on road traffic (Road Traffic Regulations).

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36 – In Candolin and Others, the defendant driver (Mr Ruokoranta) of the vehicle remained liable to pay compensation pursuant to the applicable national provisions regardless of the fact that the passengers should have noticed his drunkenness. It is apparent from paragraph 12 of the judgment, that the first instance court ordered the defendant to pay compensation to the claimants. It may also be inferred from points 20 and 23 of the Opinion of Advocate General Geelhoed in that case that the compensation which he had to pay on the basis of the damage caused was not reduced.

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37 – It is apparent from paragraph 1.4 of the order for reference in Farrell and from point 14 of the Opinion of Advocate General Stix-Hackl of 5 October 2006 that the claimant was successful with her claim for compensation. Only the assessment of damages was adjourned until the hearing.

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38 – See Jansen, N., Die Struktur des Haftungsrechts, Tübingen 2003, p. 115.

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39 – See Basedow, J./Fock, T., in: Europäisches Versicherungsvertragsrecht (published by Jürgen Basedow/Till Fock), Tübingen 2002, Volume I, p. 54, which makes the claim against the insurer for the payment of money dependent upon the occurrence of the event which caused the damage.

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40 – See Basedow, J./Fock, T., loc. cit (footnote 39) p. 108 et seq. See also in Europäisches Versicherungsvertragsrecht (published by Jürgen Basedow/Till Fock), Tübingen 2002, e.g. on Spain, Schlenker, S., Volume II, p. 1098, on Italy, D’Usseaux, F. B., Volume I, p. 727 et seq., on Greece, Papathoma-Baetge, A., Volume I, p. 636, and on Austria, Lemmel, U., Volume II, p. 1098.

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41 – See Basedow, J./Fock, T., loc. cit (footnote 39), p. 108 et seq.

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42 – See Jansen, N., loc. cit (footnote 38), p. 61, 112, 115, who points out that compensation provisions are based on a person who is responsible for damage having to compensate for that damage. Schiemann, G., in Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen, Book 2, the law of obligations, Paragraphs 249-254 (the law on compensation), preliminary remark to Paragraphs 249 et seq. explains that for reasons of compensatory justice the general function of compensation is to provide the injured party with a substitute for the damage suffered. That substitute must be assessed in such a way as to entail as far as possible the condition of being hypothetically free of the damage but not so as to provide the injured party with anything more than that.

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43 – The Greek Philosopher Aristotle, in his work Nicomachean ethics (Book V), differentiated both types of justice from one another and in so doing authoritatively informed the concept of justice. See, in relation to this, my Opinion of 11 May 2010 in Case C‑467/08 Padawan [2010] ECR I‑0000, point 74).

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44 – See Jansen, N., loc. cit (footnote 38), p. 114, who draws attention to the apportionment of liability burdens amongst collective institutions providing compensation for loss or injury, that is by means of insurance or the social security system. He suggests that frequently it is in fact the case that neither the person causing the damage nor the injured party are involved in the proceedings concerning compensation. Instead, the claimant frequently brings proceedings against the civil liability insurer of the person causing the damage. Proceedings concerning compensation and liability provisions appear therefore in the view of the writer to be concerned, economically speaking, not with compensation between the person causing the damage and an injured party, but with the apportionment of damage between two collective institutions providing compensation for damage. Basedow, J./Fock, T., loc. cit (footnote 39), p. 6, state that in so far as the assumption of risks in the context of an insurance relationship is concerned, private insurance competes in part with the social security systems which are frequently very well developed in the Member States of the European Union. The mutual similarity shows, they say, in particular, in the compulsory insurance cover which is also known to the private insurance system in many legal systems.

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45 – See Mansel, H.-P., Direktansprüche gegen Haftpflichtversicherer, Heidelberg 1986; Lüttringhaus, J. D., ‘Der Direktanspruch im vergemeinschafteten IPR und IZVR’, Versicherungsrecht, 4/2010, p. 183, 186.

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46 – See paragraph 13 of the observations of the Austrian Government.

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47 – See paragraph 20 of the observations of the German Government.

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48 – See point 57 of this Opinion.

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49 – See point 53 of this Opinion.

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50 – See point 61 of this Opinion.

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51 – See paragraph 11 of the Italian Government’s written observations.

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52 – See point 53 of this Opinion.

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53 – Origer, P.-C., Assurance et Responsabilité: bulletin de l’AIDA, Association internationale de droit des assurances, Section Luxembourg, 2006, No. 9, p. 167, criticises, for example, the fact that the Court in Candolin and Others did not clarify what should be understood by a ‘proportionate reduction in the compensation’ with the result that legal uncertainty has not been eliminated.