Batman, the Hulk and the European Motor Insurance Directive

Last week Advocate General Bobek published his Opinion in the latest ‘use of a vehicle’ and motor insurance case referred to the Court of Justice of the European Union. His view is not binding on the Court, but as it closely reflects the leading decisions in Juliana and Rodrigues de Andrade it seems likely it would be followed when a decision emerges. We look at his view and his super hero references in the body of this post.

The local authority at Ostrow (Poland) became the owner of a car under a confiscation order. It was in very poor mechanical order and was stored in a private car pound, but there was a gap of a few months after confiscation before it was insured (not long after which it was deregistered and scrapped). The Guarantee Fund levied a fine against Ostrow for its failure to insure. This was disputed and the local court asked the CJEU to resolve the question “whether it is possible to exclude the obligation to conclude a civil liability insurance contract in respect of the use of motor vehicles in a situation where the vehicle in question is immobilised on private land, has been acquired by the local government authority, is not capable of being driven and is intended to be destroyed in accordance with the wishes of its owner.”

AG Bobek analysed this as turning on when the Directive’s requirement to have compulsory motor insurance ends. The decision in Juliana in 2018 (which we analysed here) involved a registered car which was stored on private land and not insured because the owner was medically unfit to drive. It had not, however, been formally deregistered and when it was taken without consent and involved in a serious road traffic accident the CJEU held that it should have been subject to compulsory insurance, meaning the guarantee fund (in that case, Portgual) would be liable to compensate.

The AG’s view was that the legal status (ie is it registered?) and the mechanical status (ie can it be driven?) of a vehicle were not cumulative conditions needing to be fulfilled before the insurance obligation arises. The “logic, aim and purpose” of the Directive meant that a positive answer to either one of those would be sufficient to trigger the obligation to insure to vehicle, as illustrated below.

If his view is followed by the CJEU, it would mark a development from Juliana in so far as the mechanical status of the vehicle seems to become relevant, in part, for insurance purposes. His Opinion is very clear on this aspect: [where] the vehicle remains registered but is not capable of being driven because of its poor technical state … the insurance obligation remains in place so long as that registration is maintained.”

Assuming the Court adopts this approach in its decision next year – and assuming that would apply in the UK – it will reinforce the importance to museums, collectors and other keepers of mechanically undriveable motor vehicles of making make sure that they are formally deregistered in order to not be required to take out full motor insurance and to avoid any potential criminal sanctions for failing to do so.

But what about the super heroes? AG Bobek gave an example of building a ‘Batmobile’ at home and then driving it. He said that the obligation to insure the Batmobile would begin objectively from its first use as a vehicle even if it was not formally registered. He then provided a second even more bizarre example referring to a different super hero:

“if the Hulk grabs a car parked on a (European) city street in order to fight off an alien invasion, and, being the Hulk, causes damage not only to the aliens, but also to other property on that street by using the car as a weapon, it is fair to assume that that vehicle, which was just parked there for a few hours by its owner while he or she was at work in the building nearby, was a vehicle subject to the (ongoing) obligation to be insured. The fact that in the hands of the Hulk and at that precise moment, that specific ‘use of vehicle’ would hardly amount to ‘any use of a vehicle consistent with the normal function of that vehicle’, that is to say as a ‘means of travel’, is certainly of relevance for assigning liability for the damage caused in the individual case, logically excluding the motor vehicle insurance from being asked to pay for the damage, but not for the continuing existence of the obligation to take out civil liability insurance under Article 3 of Directive 2009/103.”

Despite these examples, it looks fairly likely that the Court will follow his Opinion on the interpretation of the Directive – as it had done in 2018 in Juliana – although I’m really not expecting it to make any elaborate references to the likes of Spiderman or Captain America in doing so.

Alistair Kinley, Director of Policy & Government Affairs

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