1.

In July 2006, two cars collided in Germany: a car registered in Lithuania and a German registered taxi. Both drivers were fined for the accident. The Lithuanian car was uninsured. The German driver commenced proceedings against the German motor vehicle insurers’ bureau in order to obtain compensation. However, without there being a final decision by German courts on the matter, the parties eventually settled. The German bureau paid a settlement amount to the German driver. It then received reimbursement of that amount from the Lithuanian motor vehicle insurers’ bureau. Subsequently, the Lithuanian bureau sought to retrieve the same amount from both the driver and the owner of the Lithuanian registered car before the Lithuanian courts.

2.

The questions submitted to the Court in this case concern, essentially, the legal effects of the settlement agreement referred to above and the correlating rights, in particular procedural safeguards, when such a settlement is being enforced against third parties before national courts. As set out by the referring court, at no stage did the judicial proceedings and settlement negotiations in Germany involve these persons.

3.

However, before any such assessment can be made, a preliminary issue needs to be addressed: the jurisdiction of the Court. The current regulatory landscape of motor vehicle insurance in the EU is rather complex, consisting of two sets of instruments: the Motor Insurance Directives and the Green Card system. The Green Card system appears to be the applicable instrument in the present case. It was established by the Internal Regulations, an instrument not drawn up by an EU institution, but published as an annex to a Commission decision. That leads to the question of whether the Court of Justice has jurisdiction to interpret those Internal Regulations.

4.

Article 47 of the Charter sets out the rights to an effective remedy and to a fair trial:

‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. …’

5.

There are six motor vehicle insurance directives, with the sixth directive codifying the five previous ones.

6.

Article 2 of the First Motor Insurance Directive (‘First MID’) ( 2 ) provided that:

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

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

2.   As regards vehicles normally based in the territory of a Member State, the provisions of this Directive, with the exception of Articles 3 and 4, shall take effect:

7.

According to Article 1 of the Second Motor Insurance Directive (‘Second MID’): ( 3 )

‘…

4.   Each Member State shall set up or authorise a body with the task of providing compensation, at least up to the limits of the insurance obligation for damage to property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in paragraph 1 has not been satisfied.

...

5.   The victim may in any event apply directly to the body which, on the basis of information provided at its request by the victim, shall be obliged to give him a reasoned reply regarding the payment of any compensation.

…

7.   Each Member State shall apply its laws, regulations and administrative provisions to the payment of compensation by the body, without prejudice to any other practice which is more favourable to the victim.’

8.

Article 6 of the Fourth Motor Insurance Directive (‘Fourth MID’) ( 4 ) required compensation to be provided to a person who suffered injury or damage in an accident that occurred in a Member State other than the Member State of residence. It states that the party that was injured abroad may receive compensation from the compensation body in that injured party’s Member State of residence. It further states that the compensation body may then claim reimbursement of that compensation from the competent compensation body in the Member State of the insurance undertaking’s establishment which issued the policy. That latter compensation body shall then be subrogated to the injured party in his rights against the person who caused the accident or his insurance undertaking. Member States have the obligation to acknowledge this subrogation as provided for by any other Member State.

9.

Directive 2009/103/EC (Consolidated Motor Insurance Directive, ‘CMID’) is the codifying directive. ( 5 )

10.

Commission Decision 2003/564/EC ( 6 ) contains, in an annex, the Internal Regulations. Article 3 of the Internal Regulations concerns the handling of claims. It states that:

‘1.   When a bureau is informed of an accident occurring in the territory of the country for which it is competent, involving a vehicle from another country, it shall, without waiting for a formal claim, proceed to investigate the circumstances of the accident. It shall as soon as possible give notice of any such accident to the insurer who issued the Green Card or policy of insurance or, if appropriate, to the bureau concerned. Any omission to do so shall, however, not be held against it.

…

4.   All claims shall be handled by the bureau with complete autonomy in conformity with legal and regulatory provisions applicable in the country of accident relating to liability, compensation of injured parties and compulsory insurance in the best interests of the insurer who issued the Green Card or policy of insurance or, if appropriate, the bureau concerned.

The bureau shall be exclusively competent for all matters concerning the interpretation of the law applicable in the country of accident (even when it refers to the legal provisions applying in another country) and the settlement of the claim. Subject to this latter provision, the bureau shall, on express demand, inform the insurer, or the bureau concerned, before taking a final decision.’

11.

Article 5 deals with conditions for reimbursement between the respective bureaux.

12.

Under Article 6 each national insurers’ bureau guarantees the reimbursement by its members of any amount demanded in accordance with the provisions of Article 5.

13.

Article 17(4) of the Transporto priemonių valdytojų civilinės atsakomybės privalomojo draudimo įstatymas (‘Law on compulsory insurance’) provides that: ‘The [Lithuanian motor vehicle insurance] Bureau shall pay compensation for the damage caused in another Member State of the European Union in accordance with the legislation of that other Member State of the European Union (whose national insurers’ bureau has signed the Internal Regulations) if the person responsible whose motor vehicle is normally based in the territory of the Republic of Lithuania is not covered by compulsory insurance against civil liability in respect of the use of motor vehicles … The Bureau shall also pay compensation in other cases, in compliance with the requirements of the Internal Regulations.’

14.

Article 23(5) of that law states that: ‘After having paid the amount claimed by the compensation body of another Member State of the European Union, the Bureau shall be entitled to claim reimbursement of the amount so paid from the person responsible who is not insured or from the insurer of the person responsible.’

15.

On 20 July 2006, a car accident occurred in Germany involving a German registered vehicle, driven by Mr Floros, and a Lithuanian registered vehicle, driven by Mr Dockevičius (and owned by Ms Dockevičienė). It remained unclear which party was responsible for the accident: Mr Floros and Mr Dockevičius were both fined EUR 35 and EUR 60 respectively by the German authorities. It would appear that the Lithuanian registered vehicle was not insured at the time of the accident.

16.

On 11 October 2010, Mr Floros sought compensation for the damage caused to his vehicle. He made a claim to the Deutsches Büro Grüne Karte e.V. (German insurance bureau, ‘Bureau A’). However, that bureau rejected his request.

17.

Mr Floros therefore commenced court proceedings against Bureau A before the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main, Germany). He asked for EUR 10831.77 in damages.

18.

On 27 December 2010, that court dismissed the action and handed down a default judgment, due to the absence of Mr Floros. Subsequently, on 8 August 2011, the 25th Civil Chamber of the Landgericht Frankfurt am Main (Regional Court, Frankfurt am Main) confirmed the dismissal of the action, but on a different basis: that there were shortcomings in the factual description given of the accident.

19.

An appeal was lodged by Mr Floros before the Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany). In an order dated 31 January 2012, the latter court found that the first-instance judgment contained errors attributable to an insufficiency of evidence and that in the absence of an amicable settlement between the parties, it would be necessary to remand the case for a fresh examination. It suggested that the parties settle, and that Bureau A make a payment of EUR 4095 to Mr Floros. Failing that, it took the view that a hearing with witnesses should be held.

20.

Following that suggestion, Mr Floros and Bureau A came to an agreement (‘the settlement agreement’). Mr Floros was paid a total amount of 8352.96 which included the amount recommended by the court plus the legal costs (‘the settled amount’).

21.

Bureau A received reimbursement of the settled amount from Lietuvos Respublikos transporto priemonių draudikų biuras (the Bureau of Motor Insurers of the Republic of Lithuania, ‘Bureau B’ or ‘the Applicant’).

22.

Subsequently, Bureau B commenced legal proceedings before the Lithuanian courts. It sought to recover the settled amount from Mr Dockevičius and Ms Dockevičienė (‘the Co-defendants’). The legal basis for the claim was the Lithuanian Law on compulsory insurance which, according to the order for reference, transposes Directive 2009/103 (Consolidated Motor Insurance Directive, ‘CMID’). ( 7 )

23.

On 5 May 2014, the Marijampolės rajono apylinkės teismas (District Court, Marijampolė, Lithuania) upheld Bureau B’s claim (‘first-instance judgment’).

24.

The Co-defendants appealed that judgment. On 7 October 2014, the first-instance judgment was set aside by the Kauno apygardos teismas (Regional Court, Civil Chamber, Kaunas, Lithuania) (‘second-instance judgment’).

25.

In reversing the first-instance judgment, the appeal court noted that the Co-defendants had not accepted the settled amount. They had not been parties to the legal relationship between Bureaux A and B. The information provided by the Applicant that Bureau A had paid compensation to Mr Floros could not therefore be viewed as establishing the existence and the amount of damages. The second-instance judgment also found that the burden of proof in this respect remained with the Applicant. It noted that the Internal Regulations, as the legal basis for the reimbursement between national insurers’ bureaux, govern relations only between those bureaux: they do not directly govern relations between the bureaux and third parties. Neither does the Law on compulsory insurance or the CMID provide that the Applicant may recover the amount (that was reimbursed to Bureau A) from the person who caused the damage without an assessment as to whether those amounts were justified.

26.

This second-instance judgment has been challenged before the Lietuvos Aukščiausiasis Teismas (Supreme Court, Lithuania), the referring court.

27.

The referring court notes that the Co-defendants had not been involved in or been a party to the proceedings in Germany, nor to the settlement negotiations leading to the settled amount that was paid to Mr Floros. Indeed, Bureau A always maintained that the claim brought by Mr Floros could not be upheld. Moreover, the referring court notes that Mr Dockevičius has denied liability for the accident at issue.

28.

In the light of those elements, the referring court entertains doubts as to the scope of the procedural obligations incumbent on the respective national insurers’ bureaux and the corresponding rights of the Co-defendants under the CMID, Internal Regulations, and also the Charter.

29.

In those circumstances, the Lietuvos Aukščiausiasis Teismas (Supreme Court) decided to stay the proceedings and to submit the following questions to the Court:

30.

Written observations were submitted by Bureau B, the Czech and the Italian Governments, and by the Commission. The Lithuanian Government and the Commission presented argument at the oral hearing held on 14 December 2016.

31.

This Opinion is structured as follows: since the questions posed to the Court refer to both the CMID as well as the Internal Regulations, I will first look at the relationship between these two sets of rules (A). Subject to verification by the national court, the present case falls under the Green Card system, which is established by the Internal Regulations. The latter act was not drawn up by an EU institution. I will therefore examine whether the Court has the jurisdiction to interpret it (B). I will then assess what requirements stem from EU law in relation to the procedural rights of the Co-defendants (C).

32.

Historically, the travelling motorist had to prove, upon crossing any borders, that she was insured to travel abroad. Moreover, insurance for the motor vehicle against civil liability often had to be contracted with a local insurer. ( 8 )

33.

The difficulties relating to travelling abroad and insurance were addressed in an agreement signed on 17 December 1953 under the auspices of the United Nations Economic Commission for Europe. ( 9 ) This is known as the ‘Inter-Bureaux Standard Agreement’ (‘the 1953 Agreement’). ( 10 )

34.

The 1953 Agreement gave birth to a system of ‘Green Cards’ (‘Green Card system’). ( 11 ) The Green Card is an international certificate attesting that the driver is insured against civil liability for any incident that may occur in the ‘host country’. It also certifies that the obligations arising out of that liability will be met by the ‘home country’ insurer or by the respective motor insurers’ bureau.

35.

There have been subsequent replacements of the 1953 Agreement, the most recent of which is the Internal Regulations. Currently, the national insurers’ bureaux of 48 countries (including all the EU Member States) participate in the Green Card system.

36.

The Internal Regulations were adopted and are administered by the Council of Bureaux (‘CoB’), an international non-profit association established under Belgian law.

37.

The Internal Regulations lay down the obligation for the respective national insurers’ bureaux (members of the CoB) to provide compensation for accidents that occurred on their territory, and which were caused by vehicles normally based in another state. They also made it an obligation for the bureau of the registration of such vehicles to guarantee the reimbursement of the amounts paid by the bureau situated in the country where the accident occurred.

38.

Progressive as it was, the Green Card system nevertheless left other problems connected with driving abroad unsolved. Those included border controls on motor vehicles, discrepancies between the various national rules governing the compensation of damage, and the complexities of related cross-border litigation. ( 12 )

39.

Within the EU, these aspects have been addressed through the five MIDs ( 13 ) which have now been codified and replaced by the CMID. ( 14 ) From its inception, the intra-EU regime of motor vehicle insurance was designed primarily as a tool to facilitate the free movement of persons, thus enhancing the functioning of the internal market. ( 15 )

40.

In order to carry out that aim, the EU relied on, and in some aspects expanded, the Green Card system. It is clear that both systems developed in parallel, building upon each other, and referring to each other.

41.

The First MID required the Member State to put into place compulsory third-party insurance and refrain from making checks on insurance against civil liability in respect of vehicles normally based in the territory of another Member State.

42.

This abolition of border checks on motor insurance, however, was made conditional on the conclusion of an agreement between the Member States’ respective national insurers’ bureaux. ( 16 ) In response to this, the so-called Supplementary Inter-Bureaux Agreement was signed on 16 October 1972 (‘the 1972 Agreement’).

43.

Furthermore, in Recommendation 73/185, the Commission stated that the 1972 Agreement fulfilled the conditions laid down in the First MID. It fixed the date from which the Member States were recommended to refrain from border checks on insurance (1 July 1973). ( 17 ) That recommendation was then followed by Decision 74/166/EEC in which, pursuant to Article 2(2) of the First MID, the Commission laid down an obligation for the Member States to refrain from border checks on insurance from 15 May 1974 ( 18 ) onwards. That was in respect of vehicles which are normally based in the European territory of another Member State and which are the subject of the respective agreement of the national insurers’ bureaux. The relevant instrument referred to was a version of the abovementioned agreement from 1973 (‘the 1973 Agreement’). ( 19 )

44.

Similarly, based on Article 7(2) of the First MID, the Commission adopted a second decision (Decision 74/167) requiring the Member States to refrain from the equivalent checks in respect of vehicles that are normally based in listed third countries and entering the Community territory (from 15 May 1974 onwards). ( 20 ) That possibility to treat such vehicles as being normally based in the Community was also conditioned by a guarantee. This guarantee was to be provided by the national bureaux of all the Member States as regards settlement of claims in respect of accidents occurring in their territory caused by such vehicles. That decision was subsequently adapted to its progressively expanding territorial scope. ( 21 )

45.

As well as the obligation to refrain from checks on borders for insurance, the First MID made it an obligation for the Member States to ensure that the national insurers’ bureaux, established under the Green Card system, obtain and communicate information to each other, concerning the territory in which the vehicle is normally based, its registration mark and its insurance. ( 22 )

46.

The Second, Third, Fourth and Fifth MIDs harmonised other aspects of motor vehicle insurance within the EU which are not directly relevant for the present case. ( 23 )

47.

As far as the mutual links between the Green Card and MID systems are concerned, the Fifth MID detailed the Member States’ obligations to establish a procedure for the settlement of claims, that procedure also being applicable for ‘accidents which may be settled by the system of national insurers’ bureaux’. ( 24 )

48.

Finally, the legislative history shows that some modifications made by the Fifth MID were inspired by the CoB. ( 25 )

49.

As far as the legal documents concerning the evolution of the Green Card system are concerned, the 1973 Agreement was published in the L series of the Official Journal of the European Union (‘Official Journal’) as an annex to a Commission decision. ( 26 )

50.

The same solution was then also embraced for the so-called Multilateral Guarantee Agreement between National Insurers’ Bureaux signed in Madrid on 15 March 1991, which brought together and replaced the previous Green Card System-related agreements. ( 27 )

51.

That instrument was in turn replaced by the Internal Regulations which are relevant for the present case. ( 28 ) In a similar way to its predecessors, the Internal Regulations state that the act is adopted in accordance with the principles of the First MID. The Internal Regulations contain three annexes, and one of them is the First MID. The subsequent 2008 amendment to the Internal Regulations declares that it takes the Fifth MID into account.

52.

This last point perhaps best visually captures the purpose of the detailed description of the evolution and coexistence of both systems provided in this section - the degree to which both systems grew together. In terms of legislative technique, it all rather resembles a Russian doll: a Commission decision contains within itself an annex with the Internal Regulations, and within those, annexed to that annex, is another EU legal instrument, the First MID. One layer is conditional upon the other.

53.

In sum, it is therefore quite clear that today, within the EU, the Green Card system and the MIDs are deeply intertwined. The Green Card system came earlier in time, followed by the MIDs. The MIDs were introduced as an ‘EU-specific add-on’, partially grafting themselves onto the Green Card system. Since then, both systems have evolved in parallel, with the EU drawing a number of requirements and conditions from the Green Card system for its Member States.

54.

The Lithuanian Government confirmed at the hearing that the claim at issue in the main proceedings (handled initially by Bureau A) handed over to Bureau B was covered by the Green Card system. That circumstance, which remains for the referring court to verify, nonetheless opens up the question as to whether the Court has jurisdiction to interpret the Internal Regulations.

55.

Referring to the judgments in Demouche ( 29 ) and Fournier, ( 30 ) the Commission argued in its written submissions and at the oral hearing that the Court lacks jurisdiction to interpret the Internal Regulations. The Commission put forward that the jurisdiction of the Court of Justice under Article 267(b) TFEU is limited to the acts of EU institutions only. The Internal Regulations are not an act of an EU institution. Hence, the Court of Justice cannot interpret them.

56.

I disagree.

57.

There are two ways in which the status of the Internal Regulations in the EU legal order may be approached: formally (1) or more substantively (2). However, whichever of these ways of reasoning I contemplate, I arrive at the same conclusion: the Court can interpret the Internal Regulations in a case such as the present one.

58.

First, the Internal Regulations were published as an annex to Decision 2003/564. ( 31 ) That decision itself is part of the EU legal order. Generally, it might be assumed that annexes to legal acts are endowed with the same legal force as those legal acts themselves. ( 32 )

59.

Second, Decision 2003/564 was published in the L series of the Official Journal, which contains binding legislation. ( 33 )

60.

Third, there is a clear obligation imposed on the Member States in Article 1 of the decision itself to refrain from the border checks on insurance in respect of vehicles from other Member States or third countries which are the subject of the Internal Regulations. ( 34 ) Moreover, Article 6 of the CMID (previously Article 5 of the First MID) lays down the obligation of the Member States to ensure that the national insurers’ bureaux (otherwise regulated by the Internal Regulations) exchange certain information. Those obligations, the fulfilment of which presupposes the acceptance of the Internal Regulations, are clearly enforceable as a matter of EU law.

61.

The combined force of these elements has, in my view, clear legal consequences: namely formal incorporation of an external act into the EU legal order. This fact establishes the jurisdiction of the Court to interpret that act, which became part of a Commission decision.

62.

Even if one embraces a ‘substance over form’ approach, I do not think that the conclusion would be different. Quite to the contrary: if one looks in greater detail at the overall context and operation of the Internal Regulations within EU law, one is, from my point of view, again bound to conclude that the Internal Regulations are part of the EU legal order.

63.

The structure of my elaboration of this point is as follows: first, I will place the Demouche judgment in its jurisprudential context (a). Second, I will discuss my understanding of the scope of that judgment (b). Third, I will consider the overall evolution of motor vehicle insurance since Demouche (c). Fourth, I will look at the more recent and developing case-law concerning the jurisdiction of the Court to interpret external acts (d). Fifth, I will briefly dwell on a potential and broader head of jurisdiction, under which the rules on motor insurance are inserted: the free movement of persons (e).

64.

Demouche was not an isolated case. Looking at the case-law of this Court prior to and subsequent to Demouche, it is quite clear that the interpretative approaches of the Court and its Advocates General relating to the 1972 Agreement, the legal predecessor of the Internal Regulations, varied.

65.

In his Opinion in Van Ameyde, Advocate General Reischl decided to ‘examine’ the 1972 Agreement ‘to determine the scope of the provisions of Community law which are complemented by [that] Agreement and the interpretation of which must accord with the interpretation of the Agreement’, the latter being ‘in a way’, ‘a component of Community rules’. ( 35 )

66.

In his Opinion in Demouche, Advocate General Slynn did not fully embrace that approach. In particular, he expressed some reservations as to whether the Opinion of Advocate General Reischl were to be understood as meaning that the 1972 Agreement was an act of the institutions of the Community. ( 36 )

67.

Subsequently, in Fournier, the Court nuanced its approach to the interpretation of the respective Green Card system agreement. ( 37 ) The preliminary question in that case concerned the interpretation of the term ‘vehicle normally based in the territory of another State’ under Article 1(4) of the First MID. Interestingly, the Court provided the interpretation requested by the national court although it was clear that the facts of the case fell under the Green Card system and not under the MIDs. ( 38 ) Presumably for that reason, the Court added that the terms used in the 1972 Agreement and in the First MID do not necessarily have the same meaning and that it was for the national court to give to the terms of that agreement ‘the meaning which it consider[ed] appropriate, without being bound … by the meaning … attributed to the same expression … [in the First MID]’. ( 39 )

68.

The search for a place for the Green Card instruments within the EU legal order also transpires from the Opinion of Advocate General Jacob in Fournier. ( 40 ) He stated that although the Court could not interpret the 1972 Agreement, that did not mean that the Court had ‘no jurisdiction to reply to the question raised by the national court’. Drawing a parallel with Dzodzi ( 41 ) and related case-law, ( 42 ) Advocate General Jacobs considered that the interpretative competence of the Court had to apply because the 1972 Agreement, ‘far from being an ordinary contract governed by private law, [was] an essential element in the system set up by [the First MID]. Not only was [that] agreement contemplated by the directive; its conclusion was a condition precedent to the entry into force of most of the directive’s provisions’. ( 43 )

69.

In my view, the Court’s and the Advocate General’s positions in Fournier, as well as the Advocate General’s position in Van Ameyde bear witness to the fact that there never was a strict black and white division between the Court having either full jurisdiction or having none at all, which a simple reference to Demouche without its context might make one believe. There were shades of grey. The Court has already recognised in the past that the Green Card system is intertwined with other EU law instruments and that it cannot simply be ignored by the EU legal order.

70.

However, the solution chosen there was one of ‘Dzodzi-styled’ interpretative parallelism between the provisions of the MIDs and the Green Card system. While that approach would still be possible, for the reasons outlined in the following points of this section, I do not think that it would do justice to the genuine and, since then, considerably evolved operation of the Green Card system within the Union.

71.

The preliminary question posed in Demouche was quite narrow and specific: it concerned the arbitration clause provided in the 1972 Agreement, and more particularly changes made to this clause by that agreement as opposed to the initial 1953 Agreement. ( 44 )

72.

In other words, Demouche concerned exclusively the internal functioning of the Green Card system, as then designed, and the operation of a dispute settlement mechanism to be used by the national insurers’ bureaux. That case raised no issue concerning the possible interaction of the Internal Regulations with the MID system as it then existed, or the impact of that regime on third parties’ rights.

73.

By contrast, in the present case, the referring court asks the Court to ascertain, inter alia, the procedural safeguards to be granted to persons who are considered to be responsible for an accident and who are exposed to a recourse action for damages in a different Member State. That action is a consequence of the operation of the Green Card system which has been expressly incorporated into EU law.

74.

The questions posed in the present case therefore extend well beyond the internal scheme of the Internal Regulations. They are of a very different nature. They concern, in substance, the external legal consequences of the operation of the Internal Regulations on third parties’ rights and obligations. From this point of view, I consider the present request for a preliminary ruling to be quite different from the question posed in Demouche.

75.

Apart from the fact that Demouche presented a different type of question, which did not require the Court to explore the broader implications of the Green Card system within EU law, it ought also to be stressed that the area of motor vehicle insurance regulation through the Green Card-MID system has further developed since Demouche was decided in 1987.

76.

In a nutshell, the Green Card and MID systems became more and more intertwined at the substantive, institutional as well as procedural levels.

77.

The substantive interconnection has already been explored in points 32 to 53 of this Opinion. The abolition of border checks on motor insurance under the First MID was made conditional upon what became the 1972 Agreement. That abolition continues to be conditional upon the Internal Regulations remaining in force.

78.

The institutional interplay between both systems goes even further. In general, ‘national insurers’ bureaux’ provide compensation under the Green Card system. Under the MIDs entities that have a similar role are referred to as ‘compensation bodies’. In reality, however, a single entity can act as both a national insurers’ bureau and a compensation body.

79.

In some Member States, a single entity deals with claims arising under both the Green Card system and under the MIDs. Thus, for all practical purposes, a claimant can hardly tell the difference as to when one and the same authority is acting under the MIDs and when it is acting under the Green Card system, as often the national procedure is also the same. An example of that is Lithuania itself. By contrast, in Germany, the role to provide compensation is split between two different bodies.

80.

Procedural connections can be illustrated for example by Article 6 of the CMID (the former Article 5 of the First MID). Under that article the Member States are obliged to ensure the exchange of certain information between the national insurers’ bureaux which are regulated by the Green Card system.

81.

Furthermore, settlement of claims arising from either system should be processed under the same procedure, as required by Article 19 of the CMID (the former Article 4e of the Third MID). ( 45 )

82.

On a purely ancillary note, it might be added that the documents of the CoB itself, which are available to the public, also reflect the entangled nature of the Green Card system and the MIDs. They refer to the ‘Green Card Pillar’ and the ‘MID Pillar’ which arguably presents them as sub-elements of an overarching scheme.

83.

The foregoing shows, in my view, that the Green Card system, although formally autonomous, has become so intertwined with the EU system that it effectively forms one whole. ( 46 )

84.

Apart from the internal evolution of the system of motor insurance, the broader context of the more recent case-law concerning the jurisdiction of the Court under Article 267 TFEU is also of relevance. Since Sevince, ( 47 ) the Court has held that its interpretative jurisdiction under Article 267 TFEU is not limited to acts adopted, strictly speaking, by institutions, bodies, offices or agencies of the Union. That jurisdiction also extends to acts, which although adopted outside of the EU institutional framework, subsequently became part of the EU legal order. Such jurisdiction is justified by the very objective of Article 267 TFEU, which is to ensure the uniform application of all provisions forming part of the EU legal order. ( 48 )

85.

Most recently, in Elliott, the Court confirmed its jurisdiction to interpret a harmonised standard adopted by CEN (an organisation governed by private law) which had been published in the C series of the Official Journal. The Court noted that such a standard forms part of EU law, even more so if compliance with such standards is being enforced by the Commission. ( 49 )

86.

If such a conclusion holds for a technical standard published as a mere communication in the C series of the Official Journal, I am bound to conclude that the same must also apply, a fortiori, to that part of the Commission’s decision published in the Official Journal as binding legislation in the L series of the Official Journal. Moreover, as already stated above, there are enforceable obligations flowing from that decision, ( 50 ) likely to be enforced by the Commission.

87.

That understanding is further supported by a broader constitutional argument. Recently, the Court concluded in Ledra Advertising ( 51 ) that although a given act cannot be considered as an act of an EU institution that can be challenged in an Article 263 TFEU action, it does not necessarily shield the EU from non-contractual liability claims under Article 340 TFEU. By analogy this means that even if the EU institutions act in a somewhat atypical context and manner, that does not mean that they completely escape judicial scrutiny.

88.

The same logic is, from my point of view, even more strongly applicable once an EU institution decides to incorporate an originally external legal act into EU law and to draw legal consequences from it by effectively enforcing it internally. If that happens, the same institution cannot later turn a blind eye and suggest that since that act was originally drafted by a third party, it is therefore not an act of that institution. Allowing for such ‘black holes’ of judicial review would be incompatible with the vision of a Union based on the rule of law. ( 52 )

89.

There is finally a last, perhaps rather ancillary but still relevant, point to be mentioned: the overall context in which both the Internal Regulations and MIDs operate, as well as the purpose for which both of these systems have been introduced in the EU legal order.

90.

As already set out above, both systems have been put in place as a tool for the realisation of the free movement of persons. ( 53 ) Other elements of free movement such as services, for example provision of insurance services, (as acknowledged by the Fourth MID and CMID) then became linked to both systems. ( 54 )

91.

In the context of the present case, it is particularly relevant that the participation of a Member State in the Green Card system as established by the Internal Regulations or its legal predecessor therefore clearly impacts upon the freedom of persons to move across borders within the EU. ( 55 )

92.

Therefore, an alternative (or a complementary) way of approaching the issue of jurisdiction of the Court would not be via Article 267(b) TFEU, but rather through Article 267(a) TFEU. There is no doubt that the subject matter at issue in the present case is firmly within the scope of the free movement rules of the Treaty. After all, the EU secondary law rules in the form of the MIDs and the CMID, which cover the same substantive area as the Internal Regulations, were adopted in order to enhance the free movement of persons within the Union.

93.

This has two consequences. First, in view of the intertwined nature of both systems, there is a need to ensure that the application of the respective elements of EU secondary law, namely of the CMID and the Internal Regulations, is consistent. ( 56 ) Second, it is also important to ensure that the operation of these instruments does not negatively affect the free movement of persons, such as the persons considered as responsible for an accident, in a way that is incompatible with provisions of primary law.

94.

The fact that the subject matter covered is within the scope of the Treaty provision on free movement also has an impact on the applicability of procedural rights of the parties concerned, as enshrined in particular in Article 47 of the Charter and as referred to by the national court.

95.

According to Article 51(1) of the Charter, its provisions are addressed to the Member States only when they are implementing EU law. ( 57 ) By complying with the Commission’s decision incorporating the Internal Regulations into the EU legal order, Member States are implementing EU law in the sense of Article 51(1) of the Charter. For this reason the guarantees provided for by the Charter are also rendered applicable.

96.

In the light of all the considerations outlined, both formal as well as substantive, my interim conclusion is that the Court has jurisdiction to interpret the Internal Regulations attached to the Commission’s decision.

97.

The referring court asks whether the CMID and the Internal Regulations make it possible for a national insurers’ bureau, in casu Bureau B, to base its claim for payment brought against persons such as the Co-Defendants on the mere fact that payment of the claimed amount was made by Bureau B to another national insurers’ bureau, in casu Bureau A. The referring court asks more specifically whether Bureau B (as the Applicant) must fully establish the liability underlying its claim and accordingly the amount of damages in the Member State of the respondent (first question).

98.

The referring court also asks about the scope of the information obligations that Bureau A has vis-à-vis persons such as the Co-defendants and the Applicant (second and third questions). It further enquires about the consequences of non-compliance with such an obligation (fourth question). Finally, the referring court asks whether the amount reimbursed by one bureau to another is to be regarded, in the light of the Internal Regulations, as a non-reimbursable risk rather than a pecuniary obligation (fifth question).

99.

The first question posed by the referring court relates in substance to the burden of proof to be borne by the Applicant in the main proceedings. That in turn relates to the issue of procedural safeguards to be provided to the Co-defendants. I consider that that question is fundamental for the outcome of the claim in the main proceedings.

100.

By contrast, the remaining questions are connected with the obligations between Bureaux A and B. I do not think that the response to these questions provide helpful guidance as far as the concrete rights and obligations arising in the legal relationship between Bureau B and the Co-defendants are concerned, which is the subject matter of the claim in the main proceedings before the national court.

101.

For these reasons, I would suggest to the Court to respond to the first preliminary question, and if the Court were to follow my suggestion on the reply to that question, the other preliminary questions raised would become largely redundant.

102.

At the outset, it ought to be repeated that the MIDs do not apply to the case at hand. As the Commission stated in its written pleadings, and as the Lithuanian Government confirmed at the hearing, the claim relating to the accident at issue was processed under the Green Card system. That factual finding is for the referring court to verify. However, in the absence of any elements to the contrary, I am of the view that the question posed should be answered in the light of the Internal Regulations only.

103.

However, the Internal Regulations are silent on the procedural conditions under which a national insurers’ bureau, subrogated into the rights of another national insurers’ bureau, may bring an action such as the action in the main proceedings. They concern the relations between the respective national insurers’ bureaux.

104.

It follows therefore that the rules governing both procedure and substance of a damages action such as the recourse action engaged by the Applicant in the main proceedings will be governed entirely by the national law of the Member State where that action was brought.

105.

However, as I explained above in part B of this Opinion, the Internal Regulations have been incorporated into a Commission decision. They thus became part of the EU legal order. In addition, since they operate as tool enhancing the free movement of persons and therefore find themselves firmly within its scope, the minimum standards provided for by the Charter are applicable. It is in this context that I will consider the national court’s reference to Article 47 of the Charter (right to an effective remedy and to a fair trial) in its first question.

106.

There is therefore a need to ensure that the judicial enforcement of claims arising under the Internal Regulations complies with the minimum procedural safeguards guaranteed by the Charter. Those safeguards are not applicable only to victims of traffic accidents but also to persons allegedly responsible for those accidents who are subject to related compensation claims. A balanced approach is all the more important in circumstances such as those of the main proceedings where the liability for the accident at issue seems to have been shared by both drivers.

107.

By way of a horizontal comparison, the MIDs contain rules, albeit very rudimentary, concerning the subrogation right of a compensation body against the person responsible for the accident having affected a victim outside of his or her State of residence. ( 58 )

108.

Although the present case is not concerned with such a scenario, ( 59 ) it is difficult to perceive that minimum procedural safeguards to be applied in such a case should not be construed consistently with subrogation claims introduced in other instances such as in the main proceedings.

109.

Taking into account the intertwined nature of the MIDs and the Green Card system within the EU, I am of the view that there should be a common minimum procedural protection under Article 47 of the Charter for the persons responsible for accidents. If such protection is provided in one system, the other should not evolve in isolation within the EU legal order.

110.

Against this background and with these considerations in mind, what minimum protection should be required with regard to a recourse action such as that in the main proceedings?

111.

The claim in the main proceedings appears to be a civil claim for extra-contractual/tortious liability. In terms of procedural safeguards, the rights of the parties to an effective remedy and fair and public hearing under Article 47 of the Charter essentially mean ( 60 ) that the Co-defendants must have the opportunity to challenge an allegation of liability and the amount of damages claimed. That possibility must be given either in court proceedings in the Member State of the accident (if such proceedings were brought) or in court proceedings in the Member State where the recourse action was initiated.

112.

It would be incompatible with those requirements if the person considered responsible for an accident faced automatic enforcement of a settlement agreement reached in the Member State of the accident in which she took no part. The same conclusion will be reached whether such situations would be labelled as res inter alios acta ( 61 ) or looked at through the related concept of privity of contract. ( 62 ) In other words, enforcement of a claim for damages in a recourse action under the Green Card system cannot operate on a mutual recognition basis. ( 63 ) It appears from the facts on the file however that this was the approach adopted by the first-instance judgment in the main proceedings.

113.

The precise details of the procedural safeguards that must apply to persons such as the Co-defendants in the main proceedings are for the Member States to design. However, one insurers’ bureau merely informing another bureau in another Member State, that compensation was paid under the Internal Regulations cannot be considered as sufficient evidence of liability and consequently the amount of the damage claimed. The evidence supporting a claim brought by a national insurers’ bureau in a recourse action against a person considered to be responsible for a traffic accident in the Member State where the car was registered must be fully established under the national rules governing civil liability of that Member State.

114.

In a nutshell: Even if incorporated into the EU legal order by a Commission decision, the Internal Regulations do not establish a ‘mutual recognition’ regime. How precisely a potential recourse action will be carried out is a matter of national law. However, Article 47 of the Charter requires that the individual who is considered responsible for a traffic accident gets her ‘day in court’ if she contests her liability. This might happen in the Member State of the accident or in the Member State where the recourse action has been brought against that individual. In any case, the right to a fair trial cannot be lost along the way. It cannot fall into the cracks between legal systems.

115.

In the light of the above, I propose that the Court respond to the first preliminary question referred by the Lietuvos Aukščiausiasis Teismas (Supreme Court, Lithuania) as follows:

Internal Regulations of the Council of Bureaux adopted by the Agreement of 30 May 2002 as appended to Commission Decision 2003/564/EC of 28 July 2003 on the application of Council Directive 72/166/EEC relating to checks on insurance against civil liability in respect of the use of motor vehicles cannot be interpreted as requiring the automatic enforcement of a settlement agreement reached without the participation of the person considered to be responsible in the Member State where the accident occurred against that person in the Member State where the car was registered.

The elements of any such claim brought by a national insurers’ bureau in the Member State where the car was registered in a recourse action against a person considered to be responsible for a traffic accident must be fully established under the national rules governing civil liability of that Member State, while respecting in particular the guarantees of Article 47 of the Charter of Fundamental Rights of the European Union.