i(Reference for a preliminary ruling — Approximation of laws — Insurance against civil liability in respect of the use of motor vehicles — Third Directive 90/232/EEC — Article 1 — Liability for personal injury caused to all passengers other than the driver — Compulsory insurance — Direct effect of directives — Obligation to disapply national legislation contrary to a directive — Non-application of a contractual clause contrary to a directive)
SOURCE: Court of Justice of the European Union, Annual report 2018
In its judgment in Smith, delivered on 7 August 2018, the Grand Chamber of the Court held that a national court, hearing a dispute between private persons, which finds that it is unable to interpret the provisions of its national law that are contrary to a provision of Directive 90/232 satisfying all the conditions required for it to produce direct effect, is not obliged, solely on the basis of EU law, to disapply those provisions of national law and a clause to be found, as a consequence of those provisions of national law, in an insurance contract.
In this case, the Court was asked to elaborate on the consequences of its judgment in Farrell, in which it had held that national provisions providing for an exclusion from compulsory motor insurance cover in respect of persons for whom no seats in a motor vehicle have been provided were contrary to Article 1 of Directive 90/232 and had found that that article fulfilled all the conditions required for it to produce direct effect. The referring court was uncertain as to the obligations that fall, under EU law, on a national court, hearing a dispute between private persons, where the applicable national legislation is manifestly incompatible with the provisions of that directive.
Recalling its settled case-law that a directive cannot of itself impose obligations on an individual and cannot therefore be relied upon as such against an individual, the Court held that a national court is obliged to set aside a provision of national law that is contrary to a directive only where that directive is relied on against a Member State, the organs of its administration, such as decentralised authorities, or organisations or bodies which are subject to the authority or control of the State or which have been required by a Member State to perform a task in the public interest and, for that purpose, possess special powers beyond those which result from the normal rules applicable to relations between individuals.
The extension of the possibility of relying on a provision of a directive that has not been transposed, or that has been incorrectly transposed, to the sphere of relationships between private persons is permissible only if that provision gives concrete expression to a general principle of EU law. In that situation, it is the general principle, and not the directive giving concrete expression to it, which confers on private persons a right which they may rely on as such and which, even in disputes between private persons, requires the national courts to disapply national provisions that do not comply with that principle where they consider that it is impossible to interpret those provisions in a manner that is consistent with EU law.
In the case in point, Directive 90/232, in providing in Article 1 that it is compulsory that insurance against civil liability in respect of the use of the motor vehicle at issue should cover personal injury to all the passengers, excluding the driver, that results from that use, does not give concrete expression to a general principle of EU law. Consequently, that provision — whether it has not been transposed or has been incorrectly transposed — cannot be relied on directly in a dispute between private persons.