Judgment in FBTO Schadeverzekeringen NV v Jack Odenbreit (C-463/06)
13 December 2007, Second Chamber.
A person injured in a road accident outside their home state can take legal action in their own Country's court against the insurer if they are domiciled in a Member State.
Mr Odenbreit, who is habitually resident in Germany, was injured in a road traffic accident whilst he was in the Netherlands. He brought a direct action in Germany against the other party's insurer, FBTO, although the insurer was established in the Netherlands.
The question that the German court had to consider was whether they had international jurisdiction for this claim on the basis of Articles 11(2) and 9 (1) (b) of Council Regulation (EC) No 44/2001.
Article 9(1)(a) and (b) of Regulation No 44/2001 provides:
'1. An insurer domiciled in a Member State may be sued:
(a) in the courts of the Member State where he is domiciled, or
(b) in another Member State, in the case of actions brought by the policyholder, the insured or a beneficiary, in the courts for the place where the plaintiff is domiciled ...'
Article 11 of that regulation states:
'1. In respect of liability insurance, the insurer may also, if the law of the court permits it, be joined in proceedings which the injured party has brought against the insured.
2. Articles 8, 9 and 10 shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted.
3. If the law governing such direct actions provides that the policyholder or the insured may be joined as a party to the action, the same court shall have jurisdiction over them.
The German court in the first instance said that they had no jurisdiction over a Dutch company and dismissed the action.
However the Court of Appeal recognised ,in an interim judgment, the jurisdiction of German courts over an action to establish liability, on the basis of the same provisions of Regulation No 44/2001.
FBTO brought an appeal against the decision in the Federal Supreme Court.
The Federal Court believed that the crucial issue was whether the injured party could be regarded as a "beneficiary" under 9 (1) (b). The court had doubts as to whether Recital 16a of Directive 2000/26/EC allowed "the injured party [to bring] legal proceedings against the civil liability insurance provider in the Member State in which they are domiciled." Directive 2005/14/EC.
The Federal Court decided to stay proceedings and to refer to the European Court of Justice the following question for a preliminary ruling:
'Is the reference to Article 9(1)(b) in Article 11(2) of ... Regulation ... No 44/2001 ... to be understood as meaning that the injured party may bring an action directly against the insurer in the courts for the place in a Member State where the injured party is domiciled, provided that such a direct action is permitted and the insurer is domiciled in a Member State?'
Held:
"Section 3 of Chapter II of Regulation No 44/2001, containing Articles 8 to 14, provides rules of jurisdiction in matters relating to insurance, which are additional to the general rules contained in section 1 of the same chapter of that regulation"
Section 3 provides, inter allia, that an insurer may be sued in the courts of the Member State of the insured or beneficiary. Article 9 (1) (b)
The scope of reference of Article 11 (2) to Article 9 (1) (b) is to add injured parties to the list of plaintiffs contained in Article 9 (1) (b). It also allows the rule of jurisdiction to a direct action brought by the injured party to be extended to such disputes without the plaintiff having to belong to one of the categories in Article 9 (1) (b).
The nature of the action in national law is of no relevance for the application of the provisions of the regulation, since those rules are contained in a section (namely Section 3 of Chapter II of the Regulation) which concerns matters relating to insurance. Which are distinct from those relating to special jurisdiction in matters relating to contract, tort or delict.
Therefore, the reply to the question referred for a preliminary ruling is that the reference in Article 11 (2) of Regulation No 44/2001 to Article 9 (1) (b), of the same regulation, is to be interpreted to allow the injured party to bring an action directly against the insurer before the courts in a Member State where the injured party is domiciled. Provided the insurer is domiciled in a Member State and that a direct action is permitted under national law.
