OPINION OF ADVOCATE GENERAL

SIR GORDON SLYNN

delivered on 1 July 1987

My Lords,

This case arises out of an accident which occurred in France on 22 August 1973, when Mr Marcel Demouche was injured by a motor car which was registered in the Federal Republic of Germany. Its owner was insured with a German insurance company, Allianz. The driver of the motor car apparently did not have a driving licence.

On 25 January 1978, the tribunal de grande instance at Colmar awarded damages to Mr Demouche against the driver of the motor car. The judgment declared that it was given jointly against the French Fonds de garantie automobile which is liable to indemnify persons injured in road accidents in France where, for example, the person responsible is not insured or cannot be found. The Fonds de garantie refused to pay compensation to Mr Demouche and so he brought an action against it. The Fonds de garantie, in its defence, relied on Article R 420-1 of the French insurance code according to which the Fonds assumes liability for compensation to victims of accidents caused by vehicles normally based in the territory of a Community Member State only if the compensation of such victims is not the responsibility of the Bureau central français, that bureau being set up to facilitate the settlement of claims by foreigners insured in another Member State but driving in France, or French nationals driving outside France but insured with a constituent member of the bureau.

And so Mr Demouche joined the Bureau central français to his action. In addition to resisting Mr Demouche's claim, the bureau, in turn, joined as guarantor the Allianz insurance company and the German HUK-Verband, which I understand to be the German central bureau.

On 6 July 1983, the tribunal de grande instance dismissed the Fonds de garantie automobile from the case and ordered the Bureau central français to pay Mr Demouche his damages. The dispute which appeared to remain was between the Bureau central français on the one hand and Allianz and the HUK-Verband on the other, as to whether the Bureau central français was liable to bear the loss or whether it has a right to be indemnified. I say ‘appeared to remain’ because the Court is told today that HUK-Verband has paid the Bureau central which previously had paid Mr Demouche.

In the course of the proceedings the German HUK-Verband argued that the French court had no jurisdiction over the dispute because of an arbitration clause in Article 13 of an Agreement between the respective bureaux of 17 December 1953.

That clause provides that any dispute between bureaux as to the interpretation and effect of the Agreement shall be referred to arbitration. The reply of the Bureau central was that that clause had been radically affected by the terms of a Supplementary Agreement of 16 October 1972. It is said that the latter limits the arbitration clause to the sole case of a difference between the bureaux on the interpretation of the phrase ‘normally based’ which appears in the Supplementary Agreement.

The national court has accordingly referred to this Court the question whether the Supplementary Agreement of 16 October 1972 restricted the application of the arbitration clause, which the Agreement of 17 December 1953 had provided as being of general application, to the sole case of a difference between the bureaux on the interpretation of the concept ‘normally based’.

The first matter which arises for decision is whether this Court has jurisdiction to entertain the reference at all. The Bureau central français, supported by the British Government, the Danish Government and the Commission, say that it has not; the HUK-Verband, on the other hand, says that it has.

The reason put forward to support the contention that the Court does not have jurisdiction is that there is not in issue here the validity or interpretation of an act of an institution of the Community, nor is there involved the interpretation of the statute of a body established by an act of the Council where such a statute provides for the Court to have jurisdiction. The counter-argument is that this agreement of 1972 is to be regarded as an act of an institution of the Community or is to be regarded as being assimilated to such an act.

The history of the matter can be stated shortly. There existed in 1953 a uniform type of agreement which aimed to facilitate the settling of claims concerning accidents caused by vehicles registered in a State other than that where the accident happened and where the person insured had a green card. Claims were handled on a reciprocal basis under the scheme which came to be known as the ‘green card scheme’. One such agreement is that of 17 December 1953 made between the French and German bureaux. It was plainly a private law agreement; it antedates the Treaty of Rome so that, in itself, it clearly cannot be considered as an act of an institution of the Community.

There followed in 1972 a Directive of the Community (Council Directive 72/166/EEC of 24 April 1972; Official Journal, English Special Edition 1972 (II), p. 360) which sought to extend and develop the system of compensating people who were injured in accidents in a Member State other than their own. The directive recited that ‘the abolition of checks on green cards for vehicles normally based in a Member State entering the territory of another Member State can be effected by means of an agreement between the six national insurers' bureaux, whereby each national bureau would guarantee compensation in accordance with the provisions of national law in respect of any loss or injury giving entitlement to compensation caused in its territory by one of those vehicles, whether or not insured’.

The directive accordingly provided, by Article 2, that as regards vehicles normally based in the territory of a Member State, the provisions of the directive were to take effect ‘after an agreement has been concluded between the six national insurers' bureaux under the terms of which each national bureau guarantees the settlement, in accordance with the provisions of its own national law on compulsory insurance, of claims in respect of accidents occurring in its territory caused by vehicles normally based in the territory of another Member State, whether or not such vehicles are insured’. The directive was to take effect from the date fixed by the Commission upon its having ascertained, in close cooperation with the Member States, that such an agreement had been concluded; the provisions of the directive were only to have effect for so long as that agreement was maintained.

In consequence, certain national bureaux (including Switzerland and Liechtenstein) adopted on 16 October 1972 a Supplementary Agreement which stated that it was to take effect between the bureaux on the date referred to in Article 2 (2) of the directive. That agreement, following the directive, adopts the criterion of where a vehicle is normally based and by Article 2 (d) it is provided that any dispute between bureaux regarding the interpretation of the term ‘normally based’ were to be submitted to arbitration. The Commission then recommended to the original Member States that further checks on insurance should cease from 1 July 1973 (73/185/EEC, Official Journal 1973, L 194, p. 13).

Subsequently, that agreement was extended or replaced by a further Supplementary Agreement between the national bureaux of the Member States and several other States which was signed on 12 December 1973. The provisions of that agreement, relevant for present purposes, are the same as in the Agreement of 16 October 1972.

By a Decision of 6 February 1974, the Commission, being satisfied that this latter agreement complied with Article 2 of the directive, stipulated that as from 15 May 1974 each Member State should refrain from making checks on insurance against civil liability in respect of vehicles which were normally based in the European territory of another Member State and which were the subject of the Agreement of national insurers' bureaux of 12 December 1973. A second decision of the same date dealt with the non-Member States whose bureaux were parties to the Agreement (Decisions 74/166/EEC and 74/167/EEC; Official Journal 1974, L 87, pp. 13-15). The Agreement of 12 December 1973 was annexed to those decisions.

It is because of the link between the directive and the Supplementary Agreement that the HUK-Verband contends that this Court has jurisdiction. There is clearly a link between the directive and that agreement. That agreement comes to life because of the directive; the directive is only effective when that agreement is made, and can only survive so long as the agreement is in operation. And yet, it seems to me clear not only that the agreement of 1953 was a private law agreement, but also that the supplementary agreements themselves are private law agreements which are not to be regarded as acts of an institution of the Community. I accept the submission of the Commission that the links which exist between the directive and the agreements do not change the fundamental nature of the agreements themselves. The fact that the scheme is hinged on the making of an agreement by national bureaux and that the decision recognizes the existence of the second Supplementary Agreement (made between other States' as well as Member States' bureaux), does not convert the agreement into an act of an institution. I do not see that it can be deemed to be an act of an institution or treated as such even if to do so would bring it within Article 177 of the Treaty. It remains an act of independent parties. On that basis, in my view, the Court does not have jurisdiction to answer the question which has been referred.

In Case 116/83 Bureau belge des assureurs automobiles v Fantozzi [1984] ECR 2481, at p. 2490 the Court said ‘The Court only has jurisdiction to interpret Article 2 (2) of Directive 72/166, and is precluded from interpreting any later contractual provisions’.

It is, however, suggested that another case before this Court has already, if not resolved the matter, at least pointed in the other direction. That case is Case 90/76 Van Ameyde v UCI [1977] ECR 1091. Attention is drawn to the fact that the Court said at paragraph 13 that the objective of the directive (with which this Court is concerned) ‘namely to facilitate the free movement of goods and of persons, has been achieved by means of the said agreements and the said decision’. Reliance is placed upon a statement in the Opinion of Mr Advocate General Reischl where he said at p. 1137: ‘It can, therefore, be stated that the agreement between bureaux which, in a way, is a component of Community rules, does not authorize any measures restricting competition’.

I do not regard either of those passages as deciding this matter. The Court was concerned with the question whether the agreements were compatible with the provisions of Articles 85 and 86 of the Treaty, or with the provisions of the Treaty dealing with free movement of workers, freedom of establishment and freedom to provide services. It did not say that those agreements were to be regarded as acts of the institutions but that they had achieved the objectives of the directive. Mr Advocate General Reischl, for the purposes of considering whether Article 85 was involved, was prepared to treat in a general way these agreements as being a component of Community rules. If he was seeking to say that they were thereby acts of the institutions of the Community, I would, respectfully, dissent from his view, but I do not consider that he was going so far.

The second question which is raised does not have to be answered if this Court is not competent, and since, if my view is the right one, the question will have to be decided elsewhere, it is undesirable perhaps to express a concluded view on it. In case, however, the Court takes a different view, I add, on the second question, that in my opinion the clause in the 1972 and the 1973 Supplementary Agreements is plainly not to be read as taking away entirely the effect of the arbitration clause in the 1953 Agreement. It was, no doubt, necessary to provide expressly for arbitration as to the meaning of the phrase ‘normally based’; but nothing in clause 2 (d) on its face value limits the effect of the earlier arbitration clause and it is to be noted that the supplementary agreements state expressly that they amend ‘pro tanto the existing agreements in the form of the Uniform Agreement between bureaux which have been entered into between the parties to this agreement but, apart from these amendments, the existing agreements shall remain in force and the words and expressions to which a special meaning is given by the Uniform Agreement between bureaux shall have the same meaning in this agreement’.

The Bureau central, finally, urges that the Court should find that, in any event, the arbitration clause cannot cover such matters as the insurance guarantee and the exceptions to it, or the interpretation of the directive itself or the rules for its application.

It does not seem to me that those questions fall within the reference which is made by the national court, which is limited to the question as to whether the effect of the supplementary agreement is to restrict disputes which are to go to arbitration to those which concern the phrase ‘normally based’. It does not seem to me, despite the arguments which have been put forward by counsel for the Bureau central, that those questions, said to be difficult and sensitive, fall to be answered in this case.

In conclusion, it is my view that the Court should rule that it has no jurisdiction to answer the question referred. If the Court takes the view that it should answer the question, in my view it should rule that the Supplementary Agreement of 16 October 1972 did not restrict the arbitration clause in the Agreement of 17 December 1953 to cases in which there is a difference between bureaux on the interpretation of the term ‘normally based’.

The costs of the parties in the main proceedings fall to be dealt with by the national court. The costs of the Commission and the governments which have submitted observations are not recoverable.