Yesterday the ECJ published its judgment in this case, a reference from Spain. Sr Núñez Torreiro was injured when the all-terrain military vehicle in which he was a passenger overturned during an exercise inside a restricted military area. The key question was whether Spanish legislation could exclude these circumstances from the scope of compulsory cover as required by the Motor Insurance Directive? The advice of the Advocate General, given in June this year, was that it could not.
The court has followed the AG’s opinion in its judgment of 20 December. The military vehicle fell within the definition of motor vehicle in the Directive and its use, as a vehicle (see Rodridgues de Andrade) and consistent with its normal function (see Vnuk) must be subject to compulsory insurance.
National legislation could not derogate from the insurance obligation in the Directive other than as permitted by Article 5 (i.e. either by type of vehicle or in respect of certain legal persons, often Government agencies). No relevant derogations had been put in place. The court therefore held that reliance on the Spanish legal provision that sought to restrict cover to use on “public and private roads or terrain suitable for use by motor vehicles” was precluded by the proper interpretation of the Directive.
The decision is not at all surprising, given the well-known effects of Vnuk and given the AG’s earlier opinion. The effective striking down of the Spanish provision above serves to reinforce the incompatibility of the Road Traffic Act 1988’s broadly similar restriction of compulsory motor insurance to use of vehicles on “a road or other public place”, a point which was expressly conceded by the Department of Transport in the RoadPeace judicial review last month.
The ECJ was also asked by the Spanish referring court if compulsory insurance, required by Article 3 of the Directive, may be understood to exclude uses of vehicles such as in motor sport, for industrial or agricultural purposes, or in ports or airports, from the scope of compulsory insurance? The court simply refused to answer this question on the grounds that it was hypothetical and had no bearing on the actual facts of the case.
These decisions – in Núñez Torreiro yesterday and in Rodrigues de Andrade around three weeks ago – may be helpful in that they offer further clarity at precisely the time when the Commission is very likely to be finalising its options on the scope of compulsory motor insurance in the context of its REFIT review of many aspects of the Directive. We would expect the Commission to publish its views and recommendations some time in the first quarter of 2018.
Written by Alistair Kinley, director of policy and government affairs at BLM.