29 October 2021 (*1)

(Reference for a preliminary ruling – Article 99 of the Rules of Procedure of the Court of Justice – Compulsory insurance against civil liability in respect of the use of motor vehicles – Directive 2009/103/EC – Article 3, first paragraph – Obligation to take out a contract of insurance – Scope – Unroadworthy vehicle, not registered and officially withdrawn from use)

In Case C‑688/20,

REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Rejonowy w Opatowie (District Court, Opatów, Poland), made by decision of 14 October 2020, received at the Court on 17 December 2020, in the proceedings

HG,

Ubezpieczeniowy Fundusz Gwarancyjny,

intervening party:

Prokuratura Okręgowa w Kielcach,

THE COURT (Tenth Chamber),

composed of C. Lycourgos, President of the Fourth Chamber, acting as President of the Tenth Chamber, I. Jarukaitis (Rapporteur) and M. Ilešič, Judges,

Advocate General: M. Bobek,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, pursuant to Article 99 of the Rules of Procedure of the Court of Justice,

makes the following

This request for a preliminary ruling concerns the interpretation of Article 3 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 the enforcement of the obligation to insure against such liability (OJ 2009 L 263, p. 11).

The request has been made in proceedings between HG and TC, on the one hand, and the Ubezpieczeniowy Fundusz Gwarancyjny (Insurance Guarantee Fund, Poland; ‘the Guarantee Fund’), on the other hand, concerning the possible obligation of the applicants in the main proceedings to conclude an insurance contract for civil liability arising from the use of a motor vehicle in respect of a vehicle which is not roadworthy, is not registered and has been temporarily taken off the road.

Legal framework

EU law

Directive 2009/103 contains, in Article 1(1) thereof, the following definition:

‘For the purposes of this Directive:

“vehicle” means any motor vehicle intended for travel on land and propelled by mechanical power, but not running on rails, and any trailer, whether or not coupled …’

4.4

Article 3 of that directive, entitled ‘Compulsory insurance of vehicles’, provides, in the first paragraph thereof:

‘Each Member State shall, subject to Article 5, take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance.’

5.5

Article 5 of that directive, entitled ‘Derogation from the obligation in respect of compulsory insurance of vehicles’, specifies the conditions under which each Member State may derogate from the provisions of Article 3 thereof in respect of certain natural or legal persons, public or private, or in respect of certain types of vehicle or certain vehicles having a special plate.

Polish law

The Ustawa o ubezpieczeniach obowiązkowych, Ubezpieczeniowym Funduszu Gwarancyjnym i Polskim Biurze Ubezpieczycieli Komunikacyjnych (Law on compulsory insurance, the Insurance Guarantee Fund and the Polish Motor Vehicle Risks Insurers’ Bureau) of 22 May 2003, in the version applicable to the dispute in the main proceedings (Dz. U. of 2018, item 473) (‘the Law on compulsory insurance’), in Article 3(1) thereof, defines the concept of ‘compulsory insurance’ as referring to ‘insurance of a person’s civil liability or insurance of property if the law or an international treaty ratified by the Republic of Poland provides for an obligation to conclude an insurance contract’.

7.7

Article 4(1) of the Law on compulsory insurance states that the insurance of the civil liability of the owner of a motor vehicle for damage resulting from the use of such vehicles is compulsory.

Article 23(1) of that law provides that the keeper of a motor vehicle is obliged to conclude a compulsory motor vehicle keeper’s liability insurance contract for damage resulting from the use of the vehicle he or she has in his or her possession.

Article 88 of that law provides:

‘1. A person who has failed to comply with the obligation to take out a compulsory insurance contract in accordance with the conditions for such insurance described in [this] law shall be liable to pay a fee.

for an insurance contract [for civil liability resulting from the use of motor vehicles]:

…

in the case of lorries, tractors and buses – the equivalent of three times the minimum wage;

…

…

100% of the fee set out in paragraph 2, point 1 – where that period exceeds 14 days.

…’

The dispute in the main proceedings and the question referred for a preliminary ruling

On 1 September 2014, the applicants in the main proceedings acquired a lorry (‘the vehicle at issue’). That vehicle was temporarily taken off the road in the period from 29 October 2015 to 29 October 2019, on the basis of successive decisions of the Starosta Ostrowiecki (President of the Ostrowiec district, Poland), the registration certificate and number plates of which were then deposited with the latter. The vehicle at issue was registered again, temporarily, on the basis of a decision of the same authority of 20 March 2019.

11.11

During the period of temporary withdrawal from use, that vehicle was not fit for use due to its technical condition.

12.12

Since that vehicle was not covered by an insurance contract for civil liability arising from its use during the period from 15 September 2017 to 20 March 2019 (‘the period in question’), the Guarantee Fund informed the applicants in the main proceedings, by letter of 20 May 2019, of the failure to comply with the obligation to take out insurance and invited them to produce documents establishing compliance or absence of compliance. By the same letter, a penalty of 6750 zlotys (PLN) (approximately EUR 1500) was imposed on the applicants for failure to comply with the obligation.

13.13

Those applicants brought an action before the Sąd Rejonowy w Opatowie (District Court, Opatów, Poland), the referring court, seeking a declaration that there was no obligation to insure the vehicle at issue for civil liability arising from its use during the period in question. In support of that action, they argue that imposing an obligation to take out such an insurance policy for a period during which a vehicle is temporarily taken off the road and imposing a penalty for failure to comply with that obligation ‘is unlawful and constitutes an infringement of citizens’ rights’.

14.14

The Guarantee Fund contends that the action should be dismissed. It points out that the obligation to take out a civil liability insurance policy under Article 23(1) of the Law on compulsory insurance is imposed on every owner of a motor vehicle, solely by virtue of the fact that he or she owns the vehicle and throughout the period of ownership until the day on which the vehicle is deregistered, irrespective of the manner in which the vehicle was acquired, its technical condition or the extent to which it is used. The temporary withdrawal of the vehicle from use therefore does not exempt its holder from the obligation to take out such a contract. Consequently, failure to comply with that legal obligation justifies the imposition of the penalty provided for in Article 88 of the Law on compulsory insurance.

15.15

The referring court observes that the obligation, laid down in Article 23(1) of the Law on compulsory insurance, for the keeper of a motor vehicle to take out a contract of insurance against civil liability for damage resulting from the use of that vehicle is absolute in nature, is linked to the very fact of owning a vehicle and is independent of its technical condition, its suitability or otherwise for use, the manner in which it is used or the fact that it has been withdrawn from use on the basis of a decision by a competent authority. It further notes that the penalties provided for by Polish law in the event of non-compliance with that obligation are identical, regardless of the circumstances of such non-compliance.

16.16

In the view of the referring court, such a conception of the obligation to take out a civil liability insurance contract for damage resulting from the use of a motor vehicle is too broad and goes beyond what is required by the purpose of Directive 2009/103, namely the protection of victims of road accidents.

17.17

In the light of the Court’s case-law relating to the concept of ‘use of vehicles’, as understood in the context of that directive, the imposition of an obligation to take out a civil liability insurance policy also for the holders of vehicles which are unfit for use and which have been withdrawn from use on the basis of decisions by the competent authorities is not justified, since any damage in connection with such a vehicle cannot constitute damage resulting from the ‘use of vehicles’ within the meaning of that case-law. Since the risk covered by such insurance is not likely to occur, neither the owner of an unroadworthy vehicle nor any injured party would be covered by it, despite the conclusion of the insurance contract and payment of the premium. That would be an unnecessary burden. Moreover, the penalty for failure to comply with the obligation to take out such a contract is harsh.

18.18

In those circumstances, the Sąd Rejonowy w Opatowie (District Court, Opatów) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Is Article 3 of [Directive 2009/103] to be interpreted as meaning that it is compulsory to take out a contract of insurance against civil liability for damage arising from the use of motor vehicles even if the vehicle is unfit for use and has been temporarily withdrawn from use in accordance with the law and on the basis of a decision adopted by a competent authority?’

Consideration of the question referred

19.19

Under Article 99 of the Rules of Procedure of the Court of Justice, where the answer to a question referred for a preliminary ruling can be clearly deduced from the case-law, the Court may at any time, on a proposal from the Judge-Rapporteur, after hearing the Advocate General, decide to give judgment by way of a reasoned order.

That provision should be applied in the present case.

By its question, the referring court asks, in essence, whether the first paragraph of Article 3 of Directive 2009/103 must be interpreted as meaning that the conclusion of a contract of insurance against civil liability in respect of the use of a motor vehicle is compulsory during the period in which the vehicle concerned is not roadworthy on account of its technical condition, is not registered and has been temporarily withdrawn from use in accordance with the applicable national law.

22.22

As the Court has repeatedly held, the first paragraph of Article 3, which is worded in very general terms, requires the Member States to establish in their domestic legal order a general obligation to insure vehicles (judgments of 4 September 2018, Juliana, C‑80/17, EU:C:2018:661, paragraph 36 and the case-law cited, and of 29 April 2021, Ubezpieczeniowy Fundusz Gwarancyjny, C‑383/19, EU:C:2021:337, paragraph 39).

23.23

Therefore, each Member State must ensure that, subject to the derogations provided for in Article 5 of that directive, any vehicle normally based in its territory is covered by a contract concluded with an insurance company for the purpose of securing, within the limits defined by EU law, the civil liability arising from that vehicle (judgments of 4 September 2018, Juliana, C‑80/17, EU:C:2018:661, paragraph 37).

and the case-law cited, and of 29 April 2021, Ubezpieczeniowy Fundusz Gwarancyjny, C‑383/19, EU:C:2021:337, paragraph 40).

In that regard, it should be noted that the concept of ‘vehicle’ is defined in Article 1(1) of Directive 2009/103 as covering ‘any motor vehicle intended for travel on land and propelled by mechanical power, but not running on rails, and any trailer, whether or not coupled’.

That definition is independent of the use which is made or may be made of the vehicle concerned (judgments of 4 September 2018, Juliana, C‑80/17, EU:C:2018:661, paragraph 38 and the case-law cited, and of 29 April 2021, Ubezpieczeniowy Fundusz Gwarancyjny, C‑383/19, EU:C:2021:337, paragraph 42).

Moreover, such a definition supports an objective conception of the concept of ‘vehicle’, which is independent of the intention of the owner of the vehicle or another person to actually use it (judgments of 4 September 2018, Juliana, C‑80/17, EU:C:2018:661, paragraph 39, and of 29 April 2021, Ubezpieczeniowy Fundusz Gwarancyjny, C‑383/19, EU:C:2021:337, paragraph 43).

The Court has, moreover, already emphasised that the question of the scope of the obligation to take out insurance against civil liability resulting from the use of motor vehicles must, for reasons of legal certainty, be determined in advance, that is to say, before the vehicle concerned is involved in an accident (judgments of 4 September 2018, Juliana, C‑80/17, EU:C:2018:661, paragraph 40, and of 29 April 2021, Ubezpieczeniowy Fundusz Gwarancyjny, C‑383/19, EU:C:2021:337, paragraph 44).

The Court inferred from that that the fact that it had, in essence, held in the judgments of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146), of 28 November 2017, Rodrigues de Andrade (C‑514/16, EU:C:2017:908), and of 20 December 2017, Núñez Torreiro (C‑334/16, EU:C:2017:1007), that only those cases of use of the insured vehicle which fall within the scope of its use as a means of transport and, therefore, within the concept of ‘use of vehicles’, for the purposes of the first paragraph of Article 3 of Directive 2009/103, may give rise to the insurer being responsible, under a contract of insurance against civil liability in respect of the use of that vehicle, for the damage or injuries caused by the latter, does not in any way mean that the determination of whether there is an obligation to take out such insurance should be dependent on whether or not the vehicle at issue is actually being used as a means of transport at a given time (judgment of 4 September 2018, Juliana, C‑80/17, EU:C:2018:661, paragraphs 42 and 52).

In the light of those factors, the Court held that a vehicle which is registered and has therefore not been officially withdrawn from use, and which is fit for use, falls within the concept of ‘vehicle’ within the meaning of Article 1(1) of Directive 2009/103 and that, consequently, the conclusion of a contract of insurance against civil liability in respect of the use of a motor vehicle is obligatory, under the first paragraph of Article 3 of that directive, when the vehicle concerned is still registered in a Member State and is capable of being driven but is parked on private land, solely by the choice of the owner, who no longer intends to drive it (judgment of 4 September 2018, Juliana, C‑80/17, EU:C:2018:661, paragraphs 42 and 52).

In the light of those factors, the Court has also held that the same must apply, in principle, in respect of a vehicle which is registered in a Member State, which is on private land and which is intended for scrapping by reason of the choice of its owner, even where that vehicle is, at a given time, unfit for use on account of its technical condition (judgment of 29 April 2021, Ubezpieczeniowy Fundusz Gwarancyjny, C‑383/19, EU:C:2021:337, paragraph 47).

The Court nevertheless found that, although the registration of a vehicle attests, in principle, to whether it is capable of being driven and, therefore, used as a means of transport, it cannot be ruled out that a registered vehicle is, objectively, definitively not capable of being driven because of its poor technical condition. The Court has therefore made it clear that, for such a vehicle to be excluded from the obligation to take out insurance under the first paragraph of Article 3 of Directive 2009/103, it is necessary for it to have been officially withdrawn from use in accordance with the applicable national legislation (see, to that effect, judgment of 29 April 2021, Ubezpieczeniowy Fundusz Gwarancyjny, C‑383/19, EU:C:2021:337, paragraph 58).

The Court concluded that a vehicle which is registered in a Member State remains subject to the obligation to take out insurance under the first paragraph of Article 3 of Directive 2009/103 as long as it has not been officially withdrawn from use in accordance with the applicable national legislation (judgment of 29 April 2021, Ubezpieczeniowy Fundusz Gwarancyjny, C‑383/19, EU:C:2021:337, paragraph 60).

It can be clearly inferred from that case-law that, where a motor vehicle is not roadworthy by reason of its technical condition, is not registered and has, moreover, been officially withdrawn from use in accordance with the applicable national law, it is not subject to the obligation to take out insurance under the first paragraph of Article 3 of Directive 2009/103. Such an official withdrawal from use establishes, objectively, that the vehicle concerned cannot be driven and, thus, cannot be used as a means of transport and therefore does not have the status of a ‘vehicle’ within the meaning of Article 1(1) of Directive 2009/103 (see, by analogy, judgment of 29 April 2021, Ubezpieczeniowy Fundusz Gwarancyjny, C‑383/19, EU:C:2021:337, paragraphs 58 and 59). The fact that that withdrawal is temporary is irrelevant in that regard, since there is no indication that such a circumstance would undermine the effective nature of the withdrawal of the vehicle concerned from use, for the duration thereof.

In the light of all the foregoing considerations, the answer to the question referred is that the first paragraph of Article 3 of Directive 2009/103 must be interpreted as meaning that the conclusion of a contract of insurance against civil liability in respect of the use of a motor vehicle is not compulsory during the period in which the vehicle concerned is not roadworthy on account of its technical condition, is not registered and has been temporarily withdrawn from use in accordance with the applicable national law.

Costs

Since the proceedings are, as regards the parties to the main proceedings, in the nature of an incident raised before the referring court, it is for the referring court to decide on the costs.

On those grounds, the Court (Tenth Chamber) hereby orders:

The first paragraph of Article 3 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 the enforcement of the obligation to insure against such liability must be interpreted as meaning that the conclusion of a contract of insurance against civil liability in respect of the use of a motor vehicle is not compulsory during the period in which the vehicle concerned is not roadworthy on account of its technical condition, is not registered and has been temporarily withdrawn from use in accordance with the applicable national law.

[Signatures]

(*1) Language of the case: Polish.