Tag: brussels Ia

May 28, 2018

Sibylle Calabresi-Scholz

Article 13(2) Brussels Ia Regulation, read in conjunction with Article 11(1)(b) of that regulation, must be interpreted as meaning that it may not be relied on by a natural person, whose professional activity consists, inter alia, in recovering claims for damages from insurers and who relies on a contract for the assignment of a claim concluded with the victim of a road accident, to bring a civil liability action against the insurer of the person responsible for that accident, which has its registered office in a Member State other than the Member State of the place of domicile of the injured party, before a court of the Member State in which the injured party is domiciled.

1. Facts underlying the Decision

On 4 July 2014, a vehicle belonging to a natural person domiciled in Poland was damaged in a traffic accident in Germany caused by a German national insured with LVM Landwirtschaftlicher Versicherungsverein Münster AG (‘LVM’), established in Münster (Germany).
On 12 July 2014, the owner of that vehicle entered into a rental contract for a replacement vehicle for an indefinite period; as the rate was 200 Polish zlotys (PLN) (approximately EUR 47.50) per day and the rental period extended until 22 September 2014, the rental cost amounted to PLN 14 600 (approximately EUR 3 465).
However, the owner has only been compensated for PLN 2 800 (approximately EUR 665) by a company representing LVM in Poland.
On 22 September 2014, in order to receive the remaining PLN 11 800 (approximately EUR 2 800), the owner of the vehicle concluded a contract for the assignment of a claim, whereby he transferred his right to damages to Mr Hofsoe, who exercises his commercial activity in Szczecin (Poland).
In relation to that activity, on the basis of a contractual assignment of a claim, Mr Hofsoe assumes responsibility for securing compensation from insurers to which an injured party may be entitled.
On 2 February 2015, on the basis of the contract for the assignment of a claim as referred to in paragraph 19 of the present judgment, Mr Hofsoe brought an action before the Sąd Rejonowy Szczecin-Centrum w Szczecinie seeking, principally, the amount of PLN 11 800 (approximately EUR 2 800) from LVM by way of compensation corresponding to the rental cost of a replacement vehicle.
For the purposes of establishing the jurisdiction of that court as that of the injured party’s place of domicile, Mr Hofsoe relied on Article 20 of the Law on compulsory insurance, the Insurance Guarantee Fund and the Polish Motor Vehicle Insurance Office of 22 May 2003 and the judgment of the Court of 13 December 2007, FBTO Schadeverzekeringen .
However, relying on Article 9(1) Brussels I Regulation 44/2001, read in conjunction with Article 11(2) of that regulation, LVM disputed the jurisdiction of that Polish court. It maintained that the concept of ‘injured party’ within the meaning of Article 11(2) of that regulation should be interpreted literally so that Mr Hofsoe could not sue it before a Polish court in his capacity as assignee of the injured party’s claim.
However, the Sąd Rejonowy Szczecin-Centrum w Szczecinie declared itself to have jurisdiction by a decision of 13 May 2015.
In support of the appeal which it brought against that decision before the referring court, the Sąd Okręgowy w Szczecinie , LVM primarily contends that the court of first instance misinterpreted Article 13(2) Brussels Ia Regulation 1215/2012, read in conjunction with Article 11(1)(b) of that regulation, by holding, contrary to the guidance to be derived from recitals 15 and 18 of that regulation and from the case-law of the Court, that Mr Hofsoe should have been regarded as the weaker party in the dispute. According to LVM, Mr Hofsoe is not the injured party as such, but a professional engaged in obtaining damages from insurance companies. Furthermore, as a derogation from the general rule of jurisdiction laid down in Article 4(1) of Regulation No 1215/2012, Article 13(2) of that regulation should be interpreted strictly.
Mr Hofsoe maintains that the attribution of jurisdiction to the courts for the place where thepolicyholder, the insured or a beneficiary is domiciled, as provided in Article 9(1)(b) of Regulation No 44/2001, which has been replaced by Article 11(1)(b) of Regulation No 1215/2012, (‘the forum actoris’) is not reserved exclusively for the party directly injured, so that the assignee of the injured party’s claim should also be entitled to rely on it.
The referring court considers it necessary to make a reference to the Court in so far as the field of application ratione personae of the attribution of jurisdiction provided for in Article 11(1)(b) of Regulation No 1215/2012 depends, in this instance, on the interpretation of the concept of ‘injured party’, within the meaning of Article 13(2) of that regulation. The jurisdiction of the referring court is established only if it were considered that the concept of ‘injured party’ includes a professional in the insurance sector, assignee of the claim for damages held by the person directly injured against the insurer of the vehicle which caused a traffic accident.
In that regard, the referring court points out, under Article 509(2) of the Civil Code, ‘all rights associated with the claim (…) shall be transferred with the claim’. In those circumstances, the assignment of the claim should include that of the benefit of jurisdiction. Such an interpretation would contribute towards achieving the purpose of protecting the weaker party, which underlies the special rules of jurisdiction applicable in insurance matters.
The referring court takes the view that the concept of ‘injured party’, within the meaning of Article 11(2) of Regulation No 44/2001 and consequently, of Article 13(2) of Regulation No 1215/2012, refers both to the person who suffered the damage directly as well as to a person who only suffered that damage indirectly. Therefore, that concept should cover the person who carries out, as a natural person, a professional activity of claims recovery in order to obtain compensation for damages against insurance companies, on the basis of a contract for the assignment of a claim concluded with the directly injured party. According to the referring court, that solution is all the more applicable as, in this case, there is a clear imbalance, from an economic and organisational point of view, between Mr Hofsoe’s position and that of an insurer as legal person, whose capacities, in that regard, are significantly larger.
That specific comparison of the respective situations of the parties to the main proceedings also highlights the difference between the underlying facts of the dispute in the main proceedings and those giving rise to the judgments of 17 September 2009, Vorarlberger Gebietskrankenkasse , and of 26 May 2005, GIE Réunion européenne and Others .
The referring court observes, however, that the interpretation which it suggests of Article 13(2) of Regulation No 1215/2012, read in conjunction with Article 11(1)(b) of that regulation, conflicts with the principle of strict interpretation of exceptions and, more particularly, Article 5(1) of that regulation, read in the light of recital 15 thereof.
In those circumstances, the Sąd Okręgowy w Szczecinie decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:
Must the reference, in Article 13(2) [Brussels Ia Regulation] to Article 11(1)(b) thereof be interpreted as meaning that a natural person, a businessman, who is engaged in, inter alia, obtaining damages from insurers, and who relies on the acquisition by contract of a claim from the party directly injured may bring an action for that claim against the civil-liability insurer of the person responsible for a road accident, which has its registered office in a Member State other than the Member State of the place of domicile of the injured party, before a court of the Member State in which the injured party is domiciled?

2. Findings of the Court

(1) Direct action under national law
As the CJEU notes, Article 822(4) of the Polish Civil Code makes it possible, for the person entitled to compensation, to bring a direct action against the insurer, which, under Article 13(2) Brussels Ia Regulation, results in Articles 10 to 12 of that regulation being applicable.
(2) Extension of the forum actoris to assignees of the rights of the directly injured party
The Court recalls that it has held in MMA IARD that the purpose of the reference in Article 13(2) Brussels Ia Regulation is to add injured parties to the list of claimants contained in Article 11(1)(b), without restricting the category of persons having suffered damage to those suffering it directly. Thus, the forum actoris must be extended respectively to the heirs of an insured party and to the employer who continued to pay the salary of an employee injured in a road accident while he is on sick leave after that accident. Those decisions are based on the reasoning that, first, the purpose of the provisions listed in Section 3 of Chapter II Brussels Ia Regulation is to protect the weaker party by rules of jurisdiction more favourable to his interests than the general rules and, second, an assignee of the rights of the directly injured party, who may himself be considered to be a weaker party, should be able to benefit from the special rules on the jurisdiction of courts laid down in the combined provisions of Article 11(1)(b) and of Article 13(2).
(3) No extension of protection to persons for whom that protection is not justified

As the CJEU has already held, the special rules of jurisdiction for the protection of insured are to be interpreted strictly and not to be extended to persons for whom that protection is not justified. That is the case for example where the parties concerned are professionals in the insurance sector, neither of whom may be presumed to be in a weaker position than the other. The Court follows that, therefore, a person such as Mr Hofsoe, who carries out a professional activity recovering insurance indemnity claims against insurance companies, in his capacity as contractual assignee of such claims, should not benefit from the special protection constituted by the forum actoris. The fact that he carries out his business on a small scale cannot lead to the conclusion that he is deemed to be a weaker party than the insurer. According to the Court, a case-by-case assessment of the question whether such a professional may be considered as a ‘weaker party’ in order to be covered by the definition of ‘injured party’, within the meaning of Article 13(2) Brussels Ia Regulation, would give rise to the risk of legal uncertainty and would be contrary to the objective of that regulation, laid down in recital 15 thereof, according to which the rules of jurisdiction must be highly predictable.