26th January 1996 E. Farrell traveled as a passenger
van, owned and owned by the driver was A. Whitty. The vehicle was not authorized for transporting passengers in its back. Elaine Farrell sat on the floor of a delivery van the moment when A. Whitty lost control of the vehicle. She was injured in accident. Alan
Whitty was not insured. In
accordance with the provisions of Irish law in force in the moment of accident , A. Whitty had no obligation to hold liability insurance for bodily
injuries arising in the result of negligence suffered by E. Farrell. It
belonged to the category of persons to whom, despite being included in the
scope of the Third Directive in on motor insurance and entitled to protection under this directive, such rights were
not available in under Irish law. Although the third directive in regarding motor insurance introduced the obligation to have this
type of insurance, in at the time relevant to the facts of the case, this aspect of
the directive has not yet been transposed into Irish law.
Elaine Farrell has asked for compensation to MIB . Motor Insurers Bureau of Ireland
refused application E. Farrell o compensation, because under national law there was no
requirement to have insurance against the title of liability for personal injuries suffered by the
applicant. Farrell claimed her claim before
the Irish courts; High Court in duly applied to the Court for an application issuing the ruling in for a preliminary ruling, in which he asked for tips in the interpretation of the Third Directive in on motor insurance.
According to argumentation E. Farrell, she was
seeking a declaratory ruling, indicating that the On the day of
the accident, the national regulations did not properly implement all the
relevant provisions of the First Directive in amended by the
Third Directive, in in particular art. 1 third of the
directive. In the main
proceedings, the defendant national authorities and the MIBI denied that the
legislation in force in on the day of the accident did not correctly
transpose art. 1 third of the directive. In addition, those authorities also submitted
that, since the national legislation did not provide for compulsory insurance
against civil liability in respect of passengers in question any part of a
motor vehicle, other than a large public service vehicle, unless the design or
construction of that part includes passenger seats, they have applied the
relevant provisions of the Directives in the right way
and authorized; the relevant provisions of Community law allow for the
possibility of not extending the obligation to take out civil liability
insurance for persons staying in the above-indicated part of the vehicle.
This case concerns the Community framework in compulsory vehicle liability insurance. The framework is defined by several directives aimed at
facilitating the movement of vehicles between Member States. Regarding motor
vehicles, the first Directive imposed an obligation to have civil liability
insurance covering bodily injuries relationship with movement of these vehicles. The insurance was intended to cover damages arising in the
territory of other Member States in accordance with legal provisions in force in these countries.
The second directive aims to reduce disparities between Member
States level and range content of compulsory third party liability insurance, in
particular by setting minimum guarantee sums. In addition, compulsory insurance must cover both personal
injury and material damage. The second directive also provides for the inability to refer to
contractual clauses against third parties, according to which the warranty does
not cover the use or driving of unauthorized persons, persons without a license
or persons who do not comply with the statutory technical requirements
regarding the condition and the safety of the vehicle concerned . Finally, the Second Directive requires the creation of a
guarantee fund paying compensation for damage to property or personal injury
caused by an unidentified vehicle or an uninsured vehicle .
The third directive also aims to reduce disparities between
Member States, in particular by filling existing gaps in compulsory passenger insurance. The third directive also contains provisions on the territorial
scope of the insurance guarantee and access to the guarantee fund. The Fourth Directive , which is not applicable in in the present case, it mainly concerns the liquidation of
damages resulting from traffic accidents outside the Member State of permanent
residence of the injured person. IN In order to facilitate the proceedings of the injured person,
the directive allows for the withdrawal from claim in the country of permanent residence to the representative claims designated in in that State by the insurer of the responsible person.
Finally, Directive 2005/14 / EC modernize and improves the Community motor insurance scheme, in in particular by extending to all victims the right to directly
sue an insurance company provided for in the fourth directive.
It should be noted that the Community framework has been in
place since the beginning the framework of the pre-existing green card scheme introduced
in day 1 January 1953 by the United Nations Economic Commission for Europe and managed by the Council of Offices, an organization formed in London in in 1949. This system is designed, first, to supervise third
parties who are harmed car accidents were not lossy with due to the fact that material damages or bodily injuries
sustained by them are caused by fault of the driver of the vehicle registered abroad, and secondly, eliminating the need for drivers to obtain motor
insurance at the border of each of them countries visited. The green card scheme is based on national
insurance offices responsible for administration and liquidation of damages from for accidents caused by drivers of vehicles registered abroad
and honoring vehicle insurance certificates (“green card”) issued to
persons insured by insurance companies belonging to the system.
More specifically, EU case law
has shown how to determine whether a specific legal entity is a “state
emanation” and is therefore subject to the principle of a direct vertical
effect. The most important body in this
matter is the case Foster et al.Against
British Gas , C-188/89, EU: C: 1990: 313 .
Test for the term “state
emanation” as used in Foster , formulated as follows:
… body, regardless of the legal
form which he was held responsible,
in accordance with the measure adopted by the state, for the provision of a
public service under the control of the state and has special powers to this
end that go beyond those resulting from the normal rules applicable in
relations between persons it is concluded in each case between the authorities on which
the provisions of the directive that may give rise to direct effects may be
invoked (C-188/89 in 20, emphasis added).
However, also in Foster , The CJEU proposed a wider formulation of the test, indicating
a directive capable of direct
action could be invoked against organizations or bodies that were they were subject to state power or control or had special
rights except those resulting from the
normal rules applicable to the relationships between individuals (C-188/89 at
18, emphasis added).
Interpretation Foster- the test was a relatively controversial issue in the field of EU
scholarships since its formulation in 1990.
Uncertainty about the exact
limits and effects Foster – the test remained for a surprisingly long time, and the CJEU
so far provided only limited and piecemeal explanations – most recently in the
judgment of December 12, 2013 Portgás . C-425/12, EU: C: 2013: 829 , in which the EU Court of Justice continues to refer in a less
than unequivocal manner to ‘bodies which, under the control of the Member
State, have been entrusted with services of general interest and who have
special powers to this end .
IN Farrell , referring to who was responsible for the failure to implement
the EU Motor Insurance Directive in the wake of a car accident, the CJEU
explained that the conditions set out in the so-called Foster -test they are not cumulative , they have been
delegated to perform the task in the public interest of a Member State and have
special powers for this purpose.
According to the CJEU, in Foster “The Court has not attempted to formulate a general test
that would cover all situations in which there could be one entity that could
be invoked by the Directive’s provisions that could have a direct effect”
and that it should be interpret in the light of paragraph 18 of the same judgment, in which the
Court stated that an individual may rely on such provisions for organizations
or bodies subject to the authorities or state control or have special powers
going beyond those which arise from the normal rules applicable to relations
between persons and , consequently, that
… the conditions that an
organization must adequately be subject to the authority or control of a State
and must have special rights going beyond those which result from the normal
rules applicable to relations between individuals can not be connected (C-413/15 at 28, an underline was added).
By adding a bit more clarity, the
CJEU explained that “state emanations” are important to ensure the
direct effect of EU directives after their transposition period expires
… can be distinguished from
people and should be treated as comparable to the state, both because they are legal entities governed by public law, which
are part of the state in a broad sense, or because they are subject to the authority or control of a public body, or because they were required by such a body to perform the task in the
public interest and were granted special rights for this purpose.
Therefore, an authority or
organization, even the one governed by the private law to which the Member
State is subject delegated the performance
of the task in the public interest and which has special rights for this
purpose in addition to those resulting
from the normal rules applicable to relations between individuals, there is one
which can be invoked on the provisions of the directive with direct effect .
In conclusion, it should be remembered that Community law
provided for the introduction of compulsory civil liability insurance in relationship with movement of motor vehicles. Injured third parties benefit from the possibility of direct claims against the liability insurer,
a in if it is not available to the competent local insurance fund. However, Community law did not provide for approximation of the
provisions on civil liability with road accidents. IN in these circumstances, the question arises whether and which dimension the liability insurance company or the insurance
guarantee fund may appoint against the injured person not only the lack of
liability of the insured, but also the injured person’s behavior or exclusion
resulting from insurance contracts .
I believe that this is a desirable explanation that can
potentially contribute to increasing the effectiveness of secondary EU law.