Corporis (Representation of a non-life insurance undertaking - Judgment) [2020] EUECJ C-25/19 (27 February 2020)

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(Reference for a preliminary ruling — Directive 2009/138/EC — Representation of a non-life insurance undertaking — Representative permanently resident in national territory — Service of documents — Receipt of the document initiating proceedings — Regulation (EC) No 1393/2007 — Non-applicability)

REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Okręgowy w Poznaniu (Regional Court, Poznań, Poland), made by decision of 13 December 2018, received at the Court on 15 January 2019, in the proceedings

composed of L.S. Rossi (Rapporteur), President of the Chamber, J. Malenovský and F. Biltgen, Judges,

– the European Commission, by H. Tserepa-Lacombe, M. Heller and S.L. Kalėda, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 This request for a preliminary ruling concerns the interpretation of Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ 2009 L 335, p. 1) and of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (OJ 2007 L 324, p. 79).

2 The request has been made in proceedings between Corporis sp. z o.o., an insurance company established in Poland, and Gefion Insurance A/S, an insurance company established in Denmark, concerning compensation for damage caused by a road traffic accident.

‘(76) In view of the increasing mobility of citizens of the Union, motor liability insurance is increasingly being offered on a cross-border basis. To ensure the continued proper functioning of the green card system and the agreements between the national bureaux of motor insurers, it is appropriate that Member States are able to require insurance undertakings providing motor liability insurance in their territory by way of provision of services to join and participate in the financing of the national bureau as well as of the guarantee fund set up in that Member State. The Member State of provision of services should require undertakings which provide motor liability insurance to appoint a representative in its territory to collect all necessary information in relation to claims and to represent the undertaking concerned.

(105) All policy holders and beneficiaries should receive equal treatment regardless of their nationality or place of residence. …

(127) It is of utmost importance that insured persons, policy holders, beneficiaries and any injured party having a direct right of action against the insurance undertaking on a claim arising from insurance operations be protected in winding-up proceedings.’

‘Any insurance undertaking that intends to pursue business for the first time in one or more Member States under the freedom to provide services shall first notify the supervisory authorities of the home Member State, indicating the nature of the risks or commitments it proposes to cover.’

‘1. Within one month of the notification provided for in Article 147, the supervisory authorities of the home Member State shall communicate the following to the Member State or States within the territories of which an insurance undertaking intends to pursue business under the freedom to provide services:

(b) the classes of insurance which the insurance undertaking has been authorised to offer;

At the same time, the supervisory authorities of the home Member State shall inform the insurance undertaking concerned of that communication.

2. Member States within the territory of which a non-life insurance undertaking intends, under the freedom to provide services, to cover risks in class 10 in Part A of Annex I other than carrier’s liability may require that [non-life] insurance undertaking to submit the following:

6 Article 151 of that directive, entitled ‘Non-discrimination of persons pursuing claims’, in Title I, Chapter VIII, Section 2, Subsection 2 of the directive, entitled ‘Third party motor vehicle liability’, is worded as follows:

‘The host Member State shall require the non-life insurance undertaking to ensure that persons pursuing claims arising out of events occurring in its territory are not placed in a less favourable situation as a result of the fact that the undertaking is covering a risk, other than carrier’s liability, classified under class 10 in Part A of Annex I by way of provision of services rather than through an establishment situated in that State.’

‘1. For the purposes referred to in Article 151, the host Member State shall require the non-life insurance undertaking to appoint a representative resident or established in its territory who shall collect all necessary information in relation to claims, and shall possess sufficient powers to represent the undertaking in relation to persons suffering damage who could pursue claims, including the payment of such claims, and to represent it or, where necessary, to have it represented before the courts and authorities of that Member State in relation to those claims.

That representative may also be required to represent the non-life insurance undertaking before the supervisory authorities of the host Member State with regard to checking the existence and validity of motor vehicle liability insurance policies.

2. The host Member State shall not require that representative to undertake activities on behalf of the non-life insurance undertaking which appointed him other than those set out in paragraph 1.

‘This Regulation should not apply to service of a document on the party’s authorised representative in the Member State where the proceedings are taking place regardless of the place of residence of that party.’

‘This Regulation shall apply in civil and commercial matters where a judicial or extrajudicial document has to be transmitted from one Member State to another for service there. …’

10 Article 133(2) of the ustawa Kodeks postępowania cywilnego (Code of Civil Procedure) of 17 November 1964 (Dz. U. of 2018, item 1360) states:

‘Pleadings or rulings addressed to a legal person or to an unincorporated organisation shall be served on the body authorised to represent them before a court or on an employee authorised to take receipt of pleadings.’

‘The court may, of its own motion, suspend proceedings if the proceedings cannot be continued as a result of the applicant’s address not having been indicated or having been indicated incorrectly or as a result of the applicant’s failing to indicate within the prescribed period the defendant’s address or such details as would enable the court to determine the numbers referred to in Article 208 …, or as a result of the applicant’s failure to observe other orders.’

‘The court shall discontinue suspended proceedings upon a joint motion from the parties or upon a motion from the heir as well as for the reasons indicated in Article 177(1)(5) and (6), if the motion to resume proceedings is not lodged within one year from the date of the decision to suspend proceedings.’

13 Article 208(1)(b) of the ustawa o działalności ubezpieczeniowej i reasekuracyjnej (Law on the Business of Insurance and Reinsurance) of 11 September 2015 (Dz. U. of 2018, item 999), which transposes Article 152 of Directive 2009/138 into Polish law, provides:

‘A foreign insurance undertaking established in a Member State … other than the Republic of Poland which, under the freedom to provide services, and by a means other than the establishment of a branch, intends to engage in the business of insurance in the territory of the Republic of Poland with respect to the types of insurance referred to under Group 10 of Part II of the Annex to the Law, with the exception of carrier’s civil liability insurance, shall submit to the supervisory authority, through the supervisory authority of the State in which it is established:

(1) the names and addresses of the claims representatives authorised to represent it to the extent necessary to: …

(b) provide legal representation for the company in disputes before ordinary courts of law in Poland.’

The dispute in the main proceedings and the question referred for a preliminary ruling

14 It is apparent from the order for reference that Corporis is an insurance company established in Poland which was assigned damages by the owner of a vehicle insured in Poland which was involved in a road traffic accident. Gefion Insurance is an insurance company established in Denmark covering the risks of the other person involved in that accident.

15 Gefion Insurance appointed Crawford Polska sp. z o.o., which is established in Poland, as an undertaking authorised to represent it in respect of persons who have suffered damage in Poland, pursuant to Article 152 of Directive 2009/138. On that basis, Crawford Polska, responsible for settling claims on behalf of Gefion Insurance, thus settled Corporis’ main claim with regard to the accident in question.

16 Corporis also claims, before the Sąd Rejonowy Poznań — Stare Miasto (District Court, Poznań-Old Town, Poznań, Poland), the sum of PLN 157.41 (approximately EUR 30), plus interest and costs.

17 That court, ruling at first instance, ordered that the document initiating court proceedings be served on Gefion Insurance, pursuant to the provisions of Regulation No 1393/2007. That company refused to acknowledge receipt of the document on the ground that it was written in Polish.

18 By decision of 20 July 2018, the Sąd Rejonowy Poznań — Stare Miasto (District Court, Poznań-Old Town) then requested Corporis to make an advance payment of PLN 5 000 (approximately EUR 1 150) to cover the costs of translation into Danish of the documents intended for Gefion Insurance, failing which the proceedings would be suspended.

19 Corporis refused to make that advance payment, arguing that Gefion Insurance was represented by a company established in Poland, namely Crawford Polska, which was responsible for representing Gefion Insurance in Polish before the national court seised. Accordingly, Corporis argued that there was no justification for an advance payment for the translation into Danish of that document initiating proceedings.

20 By decision of 13 September 2018, the Sąd Rejonowy Poznań — Stare Miasto (District Court, Poznań-Old Town) suspended the proceedings on the ground that they could not be continued, since Corporis had not made the advance payment relating to the costs of translating the documents intended for Gefion Insurance.

21 Corporis brought an action against that decision before the Sąd Okręgowy w Poznaniu (Regional Court, Poznań, Poland), alleging, inter alia, infringement of Article 208(1) of the Law on the Business of Insurance and Reinsurance, which transposes Article 152 of Directive 2009/138.

22 According to that court, there are doubts as to whether the Sąd Rejonowy Poznań (District Court, Poznań-Old Town) correctly applied the provisions of Regulation No 1393/2007 by ordering that the document initiating court proceedings be served on the insurance company established in Denmark, not on its representative established in Poland responsible for settling claims, within the meaning of Article 151 in conjunction with Article 152(1) and (2) of Directive 2009/138.

23 In those circumstances, the Sąd Okręgowy w Poznaniu (Regional Court, Poznań) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Should Article 152(1) and (2) of Directive 2009/138 …, read in conjunction with Article 151 of that directive and recital 8 of Regulation (EC) No 1393/2007, be interpreted as meaning that the representation of a non-life insurance undertaking by an appointed representative includes the receipt of a document which initiates court proceedings for damages in respect of a road traffic accident?’

24 By its question, the referring court asks, in essence, whether Article 152(1) of Directive 2009/138, read in conjunction with Article 151 of that directive and recital 8 of Regulation No 1393/2007, must be interpreted as meaning that the appointment by a non-life insurance undertaking of a representative in the host Member State also includes the authorisation for that representative to receive a document initiating court proceedings for damages in respect of a road traffic accident.

25 In the present case, the doubts expressed by the referring court relate, in particular, to whether, under the provisions of Regulation No 1393/2007, the court of first instance correctly ordered an insurance company established in Poland to serve a document initiating court proceedings on an insurance company established in Denmark or whether that document should have been served on the undertaking appointed by that company, pursuant to Article 152 of Directive 2009/138, which is therefore authorised to represent it in relation to persons who have suffered damage and before the courts of that Member State.

26 In order to answer the question referred, it is necessary, as a preliminary matter, to determine whether Regulation No 1393/2007 is applicable in the present case.

27 In that regard, it is important to note that, under Article 1(1) of that regulation, it applies in civil and commercial matters where a judicial or extrajudicial document has to be transmitted from one Member State to another for service there.

28 However, recital 8 of that regulation expressly states that the regulation should not apply to service of a document on the party’s authorised representative in the Member State where the proceedings are taking place, regardless of the place of residence of that party.

29 In accordance with the Court’s case-law in this field, it follows from a systematic interpretation of Regulation No 1393/2007 that that regulation provides for only two circumstances in which the service of a judicial document between Member States falls outside its scope, namely, first, where the permanent or habitual residence of the addressee is unknown and, second, where that person has appointed an authorised representative in the Member State where the judicial proceedings are taking place. By contrast, in other situations, where the person to be served with the judicial document resides in another Member State, the service of that document falls within the scope of Regulation No 1393/2007 and must, therefore, be carried out by the means put in place by the regulation for that purpose, as provided for in Article 1(1) thereof (judgments of 19 December 2012, Alder, C‑325/11, EU:C:2012:824, paragraphs 24 and 25, and of 16 September 2015, Alpha Bank Cyprus, C‑519/13, EU:C:2015:603, paragraphs 68 and 69).

30 It is common ground that Gefion Insurance, which was served with the judicial document addressed to it by Corporis, appointed Crawford Polska as an entity authorised to represent it in respect of persons who have suffered damage in Poland and before the courts of that Member State, pursuant to Article 152 of Directive 2009/138.

31 It follows that, in the light of the case-law cited in paragraph 29 above, Regulation No 1393/2007 is not applicable in the present case.

32 That said, it should be noted that, as stated in recital 76 of Directive 2009/138, in view of the increasing mobility of citizens of the Union, motor liability insurance is increasingly being offered on a cross-border basis.

33 Thus, the system established by that directive allows, inter alia, an insurance undertaking established in one Member State to pursue business in another Member State through a branch or under the freedom to provide services.

34 As regards the second possibility, which was used by Gefion Insurance to offer its services in Poland, it is characterised by the fact that it is not necessary to create a legal entity in the host Member State in order to pursue such business there. It is sufficient for that purpose, in accordance with Article 147 of Directive 2009/138, in particular, that an insurance undertaking intending to pursue business for the first time in the host Member State under the freedom to provide services notifies the supervisory authorities of the home Member State of its intention, indicating the nature of the risks or commitments it proposes to cover, and that those authorities communicate to the authorities of the host Member State, in accordance with Article 148 of that directive, the information required by that provision relating to the insurance undertaking concerned.

35 However, given the difficulty of bringing actions against an insurance undertaking which engages in cross-border activities under the freedom to provide services, Article 151 of Directive 2009/138 stipulates that the host Member State must require the non-life insurance undertaking concerned to ensure that persons pursuing claims arising out of events occurring in that Member State are not placed in a less favourable situation as a result of the fact that the undertaking is covering a risk by way of provision of services rather than through an establishment situated in that Member State.

36 To that end, in accordance with the first paragraph of Article 152(1) of that directive, the host Member State must require the non-life insurance undertaking concerned to appoint a representative resident or established in its territory who possesses sufficient powers to represent that undertaking in relation to persons suffering damage who could thus pursue claims, and in any legal proceedings brought by those persons before the courts and authorities of that Member State.

37 As that provision does not specify the exact scope of the powers conferred for that purpose on the insurance undertaking’s representative, in particular whether the power of representation includes the possibility for that representative to accept service of judicial documents, it is necessary, in accordance with settled case-law, to consider the context of that provision and the objectives pursued by the rules of which it is part (see, to that effect, judgment of 25 January 2017, Vilkas, C‑640/15, EU:C:2017:39, paragraph 30 and the case-law cited).

38 In that regard, it should be noted that Directive 2009/138 seeks, inter alia, to ensure, in accordance with recital 105 thereof, equal treatment of all policy holders and beneficiaries under an insurance contract, regardless of their nationality or place of residence.

39 In that context, Article 152(1) of that directive, read in conjunction with Article 151, pursues the objective of allowing effective compensation to be paid to victims of motor vehicle accidents residing in a Member State in which a non-life insurance undertaking provides its services, even though it does not have an establishment there.

40 The obligation on that undertaking to appoint a representative in the host Member State, laid down in Article 152(1), means that such a representative has the power, first, to collect all the necessary information in relation to claims and, second, to represent that undertaking not only in relation to those who may make a claim for damage suffered, but also in all legal proceedings relating to claims brought before the courts of the host Member State.

41 Thus, the purpose of such a representative is to make the steps to be taken by accident victims easier, in particular to allow them to make a claim in their own language, namely that of the host Member State. It would therefore be contrary to the objective pursued by Article 152(1) of Directive 2009/138 to deprive those victims, once they have carried out the preliminary formalities directly with that representative, and given that they have a direct right of action against the insurer in question, of the possibility of serving judicial documents on that representative in order to bring an action for compensation before the national courts (see, by analogy, judgment of 10 October 2013, Spedition Welter, C‑306/12, EU:C:2013:650, paragraph 24).

42 In those circumstances, it must be held that to exclude from all the powers which the representative of the non-life insurance undertaking responsible for dealing with claims must have the right of that representative to accept service of documents initiating proceedings for damages in respect of a road traffic accident would be contrary to the objective of ensuring road traffic accident victims receive effective compensation.

43 Furthermore, to exclude such a power would be contrary to the objective laid down in Article 151 of Directive 2009/138 of preventing any discrimination in respect of persons pursuing a claim. If such persons, after negotiating with the representative of the non-life insurance undertaking concerned and after verifying with that representative that it was possible to claim compensation, were required to serve the document initiating proceedings on that non-life insurance undertaking in the latter’s Member State of origin, and not on its representative in the host Member State, they would be subject to additional and onerous formalities concerning, inter alia, the need to have documents translated, which could entail costs which are disproportionate to the amount claimed by way of compensation.

44 As is apparent from the order for reference, the Sąd Rejonowy Poznań — Stare Miasto (District Court, Poznań-Old Town) requested Corporis to make an advance payment of PLN 5 000 (approximately EUR 1 150) to cover the costs of translation into Danish of the documents intended for Gefion Insurance, whereas Corporis claims before that court payment of PLN 157.41 (approximately EUR 30), plus interest and costs. In those circumstances, it cannot be ruled out that the amount of those translation costs is disproportionate in relation to the sum claimed by way of compensation, which is nevertheless a matter for the referring court to verify.

45 In the light of the foregoing considerations, the answer to the question referred is that Article 152(1) of Directive 2009/138, read in conjunction with Article 151 of that directive and recital 8 of Regulation No 1393/2007, must be interpreted as meaning that the appointment by a non-life insurance undertaking of a representative in the host Member State also includes the authorisation for that representative to receive a document initiating court proceedings for damages in respect of a road traffic accident.

46 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Article 152(1) of Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II), read in conjunction with Article 151 of that directive and recital 8 of Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000, must be interpreted as meaning that the appointment by a non-life insurance undertaking of a representative in the host Member State also includes the authorisation for that representative to receive a document initiating court proceedings for damages in respect of a road traffic accident.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Corporis (Representation of a non-life insurance undertaking - Judgment) [2020] EUECJ C-25/19 (27 February 2020) URL: http://www.bailii.org/eu/cases/EUECJ/2020/C2519.html Cite as: [2021] Lloyd's Rep IR 226, EU:C:2020:126, [2020] ILPr 15, ECLI:EU:C:2020:126, [2020] EUECJ C-25/19

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