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Almost exactly one year ago, theTribunale Ordinario di Lodi submitted a request for a preliminary ruling pursuant to Art. 267 of the Treaty on the Functioning of the European Union (TFEU) to the CJEU (Court of Justice of the European Union). The case concerned the interpretation of Art. 13 of Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles and to compulsory insurance.

What was the triggering case?

In January 2016, a young woman was asked to get into a vehicle in Lodi, Italy. While travelling, an accident occurred in which the passenger was seriously injured. It transpired that the driver had taken various drugs and that the car had been stolen. Criminal proceedings were initiated, but discontinued against the injured party. The person who caused the accident died during the trial. In 2022, the injured party filed a claim against the heirs of the person who caused the accident, as well as against the defendant company named by the FGVS.

This company was designated in accordance with Article 10(1) of Directive 2009/103. Accordingly, each Member State shall establish or recognise a corporation that is liable to pay compensation for damage to property or personal injury caused by an unidentified vehicle or a vehicle that is not insured, as defined in Art. 3, at least within the limits of compulsory insurance. Therefore, each Member State that has decided to designate such a body must also apply it.

The victim sued for compensation for pain and suffering, as well as damages

However, the first subparagraph of Article 13(2) of Directive 2009/103 provides that, in cases of stolen vehicles, Member States may stipulate that the body referred to in Article 10(1) should act in place of the insurer, in accordance with Article 13(1).

The defendant argued that Article 283(1) and (2) of Legislative Decree No. 209 only applies if the passenger was unaware of the driver's intoxication. Compensation is only provided if it was not known for certain that the driver was driving the vehicle illegally. This must also be proven by the injured party. The injured party argues that Article 13 of Directive 2009/103 should be applied with sufficient clarity and priority.

However, in its decision, the Corte Suprema di Cassazione considered the burden of proof to lie with the injured party. They have the burden of proof to conclusively demonstrate that they were unaware of the unlawful conditions. Furthermore, the Court of Cassation stated that placing the burden of proof of good faith on the injured party falls within the margin of appreciation available to the Member State in question when transposing Directive 2009/103. Finally, the injured party invokes this too. Furthermore, the national objective and the objective of UN law are identical. The referring court therefore aimed to recognise the objective of Article 13(2) of Directive 2009/103.

The ultimate conclusion

Ultimately, the ECJ concludes that it is the company against which the claim has been made and which wishes to be released from its obligation to pay compensation that must prove that the injured person, who voluntarily boarded the vehicle, knew that this specific vehicle was stolen. However, this would conflict with national case law, which interprets the national regulation such that, in a corresponding situation, it is the injured party who must prove that they were unaware that they were not authorised to use the vehicle.

This is supported by the principle of 'vulneratus ante omnia reficiendus', generally anchored in motor vehicle liability insurance, whereby any injured party can demand compensation. This is also justified by the principle of the effectiveness of Union law.

 

Legal framework Directive 2009/103/EC

 

Lliability insurance for motor vehicles

 

Art. 10(1):

1.      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 Article 3 has not been satisfied.

…

2.      …

Member States may, however, exclude the payment of compensation by that body in respect of persons who voluntarily entered the vehicle which caused the damage or injury when the body can prove that they knew it was uninsured.

 

Art. 13(2):

  Article 13 of that directive, entitled ‘Exclusion clauses’, provides, in paragraphs 1 and 2:

‘1.      Each Member State shall take all appropriate measures to ensure that any statutory provision or any contractual clause contained in an insurance policy issued in accordance with Article 3 shall be deemed to be void in respect of claims by third parties who have been victims of an accident where that statutory provision or contractual clause excludes from insurance the use or driving of vehicles by:

(a)      persons who do not have express or implied authorisation to do so;

(b)      persons who do not hold a licence permitting them to drive the vehicle concerned;

(c)      persons who are in breach of the statutory technical requirements concerning the condition and safety of the vehicle concerned.

However, the provision or clause referred to in point (a) of the first subparagraph 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.

Member States shall have the option – in the case of accidents occurring on their territory – of not applying the provision in the first subparagraph if and in so far as the victim may obtain compensation for the damage suffered from a social security body.

2.      In the case of vehicles stolen or obtained by violence, Member States may provide that the body specified in Article 10(1) is to pay compensation instead of the insurer under the conditions set out in paragraph 1 of this Article. …

…’

Italian law

        Article 283(1) and (2) of decreto legislativo n. 209 – Codice delle assicurazioni private (Legislative Decree No 209 establishing the Private Insurance Code) of 7 September 2005 (GURI No 239 of 13 October 2005, Ordinary Supplement No 163), in the version applicable to the dispute in the main proceedings, provides:

‘1.      The Guarantee Fund for Road Accident Victims, set up within the [Concessionaria Servizi Assicurativi Pubblici SpA (Consap)], shall pay compensation for damages caused by the use of vehicles and vessels, for which insurance is compulsory, in cases where:

…

(d)      the vehicle is being used against the will of its owner, …

2.      In the case referred to in paragraph 1(d), compensation shall be payable, in respect of both personal injuries and material damage, only to non-travelling third parties and to passengers travelling against their will or who have no knowledge of the unlawful use of the vehicle.’

 

 

 

Source: Pixabay/Curia-4765849_1280