61989J0073

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Approximation of laws ° Insurance against civil liability in respect of motor vehicles ° Directive 72/166 ° Territory in which a vehicle is normally based ° Meaning ° Vehicle bearing a registration plate duly issued in respect of another vehicle ° State of registration

(Council Directive 72/166, Art. 1(4), as amended by Directive 84/5)

Article 1(4) of Directive 72/166 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 to the enforcement of the obligation to insure against such liability, as amended by Directive 84/5, must be interpreted as meaning that a vehicle which, on crossing the frontier, bears a registration plate that was duly issued by the authorities of a Member State but is false by reason of the fact that it is in reality the registration plate allocated to another vehicle, is to be regarded as normally based in the territory of the State which issued the plate in question.

This interpretation does not prejudge the question as to which of the national bureaux must, under the agreement between them, bear the burden of paying damages to the victim of a traffic accident caused by a person driving a vehicle in the circumstances described above. The agreement between national central bureaux, although using the same terms as the directive, in fact remains an instrument governed by private law the interpretation of which is a matter for the national court alone.

In Case C-73/89,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Tribunal de Grande Instance, Toulon, for a preliminary ruling in the proceedings pending before that court between

Alain Fournier and family

and

Vaiter van Werven and Others

Parties joined:

Bureau Central Français and Others

on the interpretation of the term "territory in which a vehicle is normally based" in Article 1(4) of Council Directive 72/166/EEC of 24 April 1972 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 to the enforcement of the obligation to insure against such liability (OJ, English Special Edition 1972 (II), p. 360), as amended by 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 (OJ 1984 L 8, p. 17),

THE COURT (Sixth Chamber),

composed of: C.N. Kakouris, President of the Chamber, J.L. Murray, G.F. Mancini, F.A. Schockweiler and M. Diez de Velasco, Judges,

Advocate General: F.C. Jacobs,

Registrar: D. Triantafyllou, Administrator,

after considering the written observations submitted on behalf of:

° the Bureau Central Français des Assurances and the Fonds de Garantie Automobile by Lise Funck-Brentano, of the Paris Bar,

° the Nederlands Bureau der Motorrijtuigverzekeraars, by Jean Dechezleprêtre, of the Paris Bar;

° HUK-Verband, by Fritz Ranke, Rechtsanwalt, Munich;

° HUK-Coburg, by Charles Turk, of the Luxembourg Bar,

° the German Government, by Martin Seidel, Ministerialrat in the Federal Ministry of the Economy, and Horst Teske, Ministerialrat in the Federal Ministry of Justice, acting as Agents;

° the French Government, by Edwige Belliard, Sous-Directeur des Affaires Juridiques, in the Ministry of Foreign Affairs, and by Sylvie Grassi, Secrétaire des Affaires Etrangères, acting as Agents;

° the United Kingdom, by J.A. Gensmantel, for the Treasury Solicitor, acting as Agent;

° the Commission, by Jean Amphoux, Legal Adviser, acting as Agent,

having regard to the Report for the Hearing,

after hearing the oral observations of the Bureau Central Français des Assurances and the Fonds de Garantie Automobile, the Nederlands Bureau der Motorrijtuigverzekeraars, the HUK-Verband, the HUK-Coburg, the German Government, and the French Government, represented by Jean-Louis Falconi, Secrétaire des Affaires Etrangères, acting as Agents, at the hearing on 12 March 1992,

after hearing the Opinion of the Advocate General at the sitting on 20 May 1992,

gives the following

Judgment

1 By judgment of 26 September 1988, received at the Court on 9 March 1989, the Tribunal de Grande Instance (Regional Court), Toulon, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of the expression "territory in which a vehicle is normally based" in Article 1(4) of Council Directive 72/166/EEC of 24 April 1972 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 to the enforcement of the obligation to insure against such liability (OJ, English Special Edition 1972 (II), p. 360), as amended by 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 (OJ 1984 L 8, p. 17).

2 That question was raised in proceedings brought by the Bureau Central Français des Assurances (French Central Insurance Bureau) against the Nederlands Bureau der Motorrijtuigverzekeraars (Netherlands Central Insurance Bureau) and the HUK-Verband (German Central Insurance Bureau) as to who should ultimately bear the burden of paying damages to the victims of a road-traffic accident caused by a private motor vehicle which had been stolen and fitted with a false registration plate.

3 The documents before the Court show that on 25 January 1985 the Fournier family was the victim of a road-traffic accident in Toulon, France, caused by a Netherlands national, Vaiter van Werven, who was driving a vehicle bearing Netherlands registration plate.

4 Investigations carried out on the basis of the registration number and the chassis number of the vehicle in question showed that, after being duly registered in Germany, the vehicle had been stolen in the Netherlands from its lawful owner, a German national, and, following the theft, had been deregistered by the German authorities. Furthermore, the Netherlands plates which the vehicle in question bore at the time of the accident were false and in fact corresponded to the registration of another vehicle belonging to a Netherlands national.

5 Mr and Mrs Fournier brought proceedings against Mr Van Werven and the Bureau Central Français to obtain compensation for the damage suffered by them.

6 By judgment of 26 September 1988, the Tribunal de Grande Instance, Toulon, before which the case came, made an order requiring Mr Van Werven and the Bureau Central Français, jointly and severally, to pay compensation for all the damage suffered.

7 With respect to the claims made by the Bureau Central Français against the Nederlands Bureau der Motorrijtuigverzekeraars and the HUK-Verband, the national court, considering that they raised a problem of interpretation of the expression "territory in which a vehicle is normally based" used in Directives 72/166 and 84/5, stayed the proceedings and, by the same judgment, referred the following question to the Court of Justice for a preliminary ruling:

"In what territory is a vehicle which has been the subject of successive registrations in more than one Member State, whether duly granted by the competent authorities or indicated by the affixing thereto of false registration plates, normally based within the meaning of Article 1(4) of the Community directive of 24 April 1972, as amended by the Community directive of 30 December 1983?"

8 Reference is made to the Report for the Hearing for a fuller account of the facts, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

The Community legislation

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

10 The operation of that system presupposed that each central national insurers' bureau, being an association whose membership includes all or the majority of insurance companies, would guarantee compensation for damage in respect of which entitlement to redress arises, caused on its territory by a vehicle, whether or not insured, which is normally based in a Member State. To take account of that necessity, Article 2(2) of the Directive provided:

"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:

° 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;

° from the date fixed by the Commission, upon its being ascertained in close cooperation with the Member States that such an agreement has been concluded;

° for the duration of that agreement."

11 According to Article 1(4) of the Directive, "territory in which the vehicle is normally based" means

"° the territory of the State in which the vehicle is registered; or

° in cases where no registration is required for a type of vehicle but the vehicles bears an insurance plate, or a distinguishing sign analogous to the registration plate, the territory of the State in which the insurance plate or the sign is issued; or

° in cases where neither registration plate nor insurance plate nor distinguishing sign is required for certain types of vehicle, the territory of the State in which the person who has custody of the vehicle is permanently resident".

12 The first indent of that provision was replaced by Directive 84/5 as follows:

"the territory of the State of which the vehicle bears a registration plate, or".

13 It should be pointed out that, before the adoption of Directive 72/166, insurance against civil liability in respect of the use of motor vehicles in the Community was governed exclusively by private law. The first agreement in that sphere, entitled "Inter-Bureaux Standard Agreement", signed on 17 December 1953 between a number of national bureaux and insurance companies, established a system of cooperation known as the "green card system" and based on a standardized green certificate of insurance.

14 Pursuant to Article 2(2) of the Directive, the central bureaux of the Member States and those of two non-member countries concluded, on 16 October 1972, an agreement supplementing the 1953 agreement. In Recommendation 73/185/EEC of 13 May 1973 (OJ 1973 L 194, p. 13), the Commission found that that supplementary agreement fulfilled the conditions laid down by the first indent of Article 2(2) and set as 1 July 1973 the date as from which the original Member States should refrain from carrying out frontier checks relating to insurance against civil liability for vehicles normally based in the territory of another Member State.

The question submitted by the national court

15 It must be observed that, having regard to the order for reference and the other documents before the Court, the national court seeks essentially to ascertain, by means of its question, whether, pursuant to Article 1(4) of the Directive, as amended, a vehicle which, when crossing the frontier, bears a registration plate that was duly issued by the authorities of a Member State but is false by reason of the fact that it is in reality the registration place allocated to another vehicle, can be regarded as normally based in the territory of the State which issued the plate in question.

16 As stated earlier, the essential purpose of the Directive is to eliminate checks at frontier crossings in respect of compulsory insurance against civil liability for individuals' vehicles in order to facilitate travel between the Member States; that elimination of checks relates to vehicles normally based in the territory of a Member State.

17 That is why the Directive makes the elimination of checks at frontier crossings conditional upon the conclusion of an agreement between the national insurance bureaux under which each national bureau stands surety for the payment of damages to the victims of accidents occurring in the territory of the Member State concerned.

18 That objective can be attained only if, at frontier crossings, the check relates only to whether the vehicle bears a registration plate which has ostensibly been duly issued by the authorities of one of the Member States and if proof of registration may be asked for only if a plate has been visibly falsified.

19 That was the reason for the abovementioned clarification made by Directive 84/5 to the first indent of Article 1(4) of Directive 72/166, which replaced the phrase "the territory of the State in which the vehicle is registered" by the phrase "the territory of the State of which the vehicle bears a registration plate".

20 Accordingly, Article 1(4) of Directive 72/166, as amended, must be interpreted as meaning that a vehicle which, on crossing the frontier, bears a registration plate that was duly issued by the authorities of a Member State but is false by reason of the fact that it is in reality the registration plate allocated to another vehicle, is to be regarded as normally based in the territory of the State which issued the plate in question.

21 It has been argued before the Court that such an interpretation would lead to the rather unsatisfactory conclusion that the national bureau of the State where an accident occurred may, after paying compensation to the victims, seek reimbursement from the national bureau of the Member State from which the stolen or falsified plate emanated even though that State had no connection with the vehicle which caused the accident.

22 It must be stated in that regard that even though the national court submitted its question with a view to obtaining a ruling on the interpretation of the agreement between national bureaux, the purpose of which is to determine which of the bureaux must, ultimately, bear the cost of paying compensation to the victim, that argument is not relevant since the determination, in that agreement, of the bureau which is to pay the compensation was arrived at in an area not covered by the Directive and the terms used in the agrement do not therefore necessarily have to have the same meaning as those used in the Directive.

23 Consequently, it is for the national court, as the only court with jurisdiction to interpret the agreement between the national bureaux, to give to the terms used in that agreement the meaning which it considers appropriate, without being bound in that regard by the meaning which must be attributed to the same expression as used in the Directive.

24 It follows from all the foregoing considerations that it must be stated in reply to the question submitted by the national court that Article 1(4) of the Directive, as amended, must be interpreted as meaning that a vehicle which, on crossing the frontier, bears a registration plate that was duly issued by the authorities of a Member State but is false by reason of the fact that it is in reality the registration plate allocated to another vehicle, is to be regarded as normally based in the territory of the State which issued the plate in question.

Costs

25 The costs incurred by the French and German Governments and the United Kingdom, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Sixth Chamber),

in answer to the question referred to it by the Tribunal de Grande Instance, Toulon, by judgment of 26 September 1988, hereby rules:

Article 1(4) of Council Directive 72/166/EEC of 24 April 1972 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 to the enforcement of the obligation to insure against such liability must be interpreted as meaning that a vehicle which, on crossing the frontier, bears a registration plate that was duly issued by the authorities of a Member State but is false by reason of the fact that it is in reality the registration plate allocated to another vehicle, is to be regarded as normally based in the territory of the State which issued the plate in question.