Jurisdiction in the Union: insurance and assignment of claims for damages – Insurance

The Brussels I Regulation bis n° 1215/2012 of December 12, 2012 concerning jurisdiction, recognition and enforcement of judgments in civil and commercial matters provides for a rule of jurisdiction in tort or quasi-tort matters. It thus states, in Article 7(2), that in this matter, a person domiciled in the territory of a Member State may be sued in a Member State other than that of his domicile, before the court of the place where the harmful event has occurred or is likely to occur.

It also lays down rules of jurisdiction in matters of insurance, in particular the following:

– Article 10: In matters of insurance, jurisdiction is determined by section 3 of chapter II of the regulations, without prejudice to article 6 and article 7, point 5;
– Article 11: “1. An insurer domiciled in the territory of a Member State may be sued: a) before the courts of the Member State where he is domiciled; b) in another Member State, in the event of actions brought by the policyholder, the insured or a beneficiary, before the court of the place where the plaintiff is domiciled; or (c) in the case of a co-insurer, before the court of a Member State seized of the action brought against the leading insurer of the co-insurance. 2. Where the insurer is not domiciled in the territory of a Member State, but has a branch, agency or any other establishment in a Member State, it shall be considered for disputes relating to their operation as having its domicile. in the territory of that Member State”.
– Article 12: “The insurer may also be sued before the court of the place where the harmful event occurred if it concerns liability insurance or insurance relating to buildings. The same applies if the insurance covers both buildings and furniture covered by the same policy and affected by the same loss”.
– Article 13: “1. In matters of liability insurance, the insurer may also be called before the court seized of the action of the victim against the insured, if the law of that court allows it. 2. Articles 10, 11 and 12 are applicable in the event of direct action brought by the injured party against the insurer, when direct action is possible. 3. If the law relating to this direct action provides for the liability of the policyholder or the insured, the same jurisdiction will also have jurisdiction over them”.

In the case judged on October 21, 2021, it was a question of determining the scope of these provisions in two cases in which a Danish insurance company had been sued in Poland following road traffic accidents in which its insured had been found liable. The particularity of these cases was due to the fact that the proceedings had been initiated by companies assignees of the right to compensation of the victims. There was, however, a difference between the two types: in one of them, the transferee company was acting in the context of a normal activity of buying compensation claims, while in the other, the transferee company had a main activity of repairing and renting vehicles and acted incidentally as assignee of a claim for compensation, following an assignment of claim entered into in return for the services performed for the benefit of the customer.

Eligibility of a company, occasional assignee of a claim for compensation, for the benefit of Article 13, § 2

The first preliminary question aimed to determine, in essence, whether or not an assignee of this second type could rely on the rules of jurisdiction specific to insurance matters – and in particular Article 13, § 2 – provided for by the Regulation , which were above all designed to attenuate the existing imbalance between the parties, the insured being traditionally perceived, from the European perspective, as a weak party (recital 18 of the regulation).

The object of this article 13, § 2, has already been identified by the Court of Justice (on this, H. Gaudemet-Tallon and M.-E. Ancel, Jurisdiction and enforcement of judgments in Europe6and ed., LGDJ, 2018, no. 294), which ruled that the purpose of the referral made by this article is to add to the list of applicants contained in Article 11, § 1, b), persons who have suffered damage, without the circle of these persons being restricted to those who suffered it directly (CJEU 20 July 2017, case C-340/16, MMA P&Cpt 33, D. 2017. 1606 ; ibid. 2018. 966, ob. S. Clavel and F. Jault-Seseke ; Proceedings 2017. Comm. 238, obs. C. Nourissat; Europe 2017. 390, obs. L. Idot; May 20, 2021, aff. C‑913/19, NOCpt 38, Dalloz news, 1er June 2021, obs. F. Melin; D.2021.1036 ; ibid. 1832, ob. L. d’Avout, S. Bollée and E. Farnoux ). This perspective has been applied to the heirs of the victim of a road traffic accident (ECJ 17 Sept. 2009, case C‑347/08, VorarlbergerGebietskrankenkasse, pt 44, RTD eur. 2010. 421, chron. M. Douchy-Oudot and E. Guinchard ; Proceedings 2009. Comm. 387, obs. C. Nourissat; Europe 2009. Comm. 387, obs. L. Idot), as well as to an employer who has maintained the remuneration of an employee for the duration of an incapacity for work following an accident and who was therefore subrogated in his rights (CJEU 20 July 2017, case C‑340/16, MMA P&Cprev.).

However, the Court of Justice has also ruled that the application of the rules of jurisdiction specific to insurance matters should not be extended to persons for whom the protection that these rules provide is not justified (CJEU 20 May 2021, prec. , pt 39). It stated on this subject that no special protection is justified in the relations between professionals of the insurance sector, none of whom can be presumed to be in a position of weakness compared to the other (CJEU 31 Jan. 2018, case C‑106/17, hofsoe, pt 42, Dalloz news, 12 Feb. 2018, ob. F. Melin; D. 2018. 247 ; ibid. 966, ob. S. Clavel and F. Jault-Seseke ; ibid. 1934, ob. L. d’Avout and S. Bollée ; Rev. crit. DIP 2018. 609, note S. Corneloup ; Proceedings 2018. Comm. 108, obs. C. Nourissat). Extending this approach, the judgment of October 21, 2021 states that Article 13, § 2 “must be interpreted in the sense that it cannot be invoked by a company which, in return for services it provides to the direct victim of a road traffic accident in connection with the damage resulting from this accident, has acquired from it the claim for insurance compensation, for the purpose of claiming payment from the insurer of the author of the said accident, without however exercising a professional activity in the field of the recovery of such debts”.

Although this principle seems to have a general scope, the judgment nevertheless takes care to emphasize that the activity of the transferee company was part of a particular pattern and indicates that it is usual in Poland for vehicle repairers and rental companies to claim compensation directly to the insurer of the author of the damage, in place of the injured party whose claim they are repurchasing, in return for the services they provide (judgment, point 37). However, in doing so, they develop close ties with the insurance sector, which does not allow them to be considered as weak parties that must be protected (judgment, point 38). And it matters little whether the professional in question carries out his activity within the framework of a small structure, with limited financial resources, or whether this debt collection activity is incidental (judgment, pt, 41).

Eligibility of the professional assignee of claims for compensation for the benefit of Article 7, § 2

With the second question referred, it was a question of determining whether Article 7, point 2, of the regulation is likely to be invoked by a professional who has acquired, under an assignment contract, the debt of the victim a road traffic accident, with the aim of bringing, before the courts of the Member State of the place where the harmful event occurred, a tort or quasi-tort action against the perpetrator’s insurer of this accident, which has its registered office in the territory of a different Member State.

The judgment of October 21, 2021 provides a positive answer to this question, which is not surprising. It has in fact already been judged that if Articles 10 et seq., concerning the matter of insurance, of the Regulation are not applicable when neither of the parties is in a position of weakness in relation to the other party, the request is likely to fall under Article 7, point 2, even if it is a dispute relating to insurance, provided that the conditions laid down by this provision for its application are met (CJEU 20 May 2021, prec ., pt 46).

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