Читать книгу Dimensiones y desafíos del seguro de responsabilidad civil - Abel B. Veiga Copo - Страница 33

The Court gives a negative response35. It points out that unequal treatment on grounds of nationality is prohibited under Article 18 TFEU where two cumulative conditions are satisfied: the situation must fall within the scope of application of EU law, and there must be no specific rule laid down by the Treaties prohibiting discrimination on grounds of nationality36; according to its wording, Article 18 TFEU is of subsidiary application.

The first of these conditions is drafted in very wide terms by Article 18 TFEU which requires that a situation falls “within the scope of application of the Treaties”. Given the long list of policy areas entrusted to the Union and added to the Treaties over the years, these words do not appear to exclude very much. The interpretation by the Court of Justice has tried to clarify the meaning, but its decisions are oscillating between a wide and a narrow understanding, depending on the circumstances of the case37. In the present case, the Court opts for an extremely narrow view; it is not sufficient that a situation could be dealt with by the Union which is competent to adopt legislation in the respective field under the Treaties. The Court holds that “it is necessary to examine … whether that situation has been the subject of regulation under EU law38”. Put in other words, the Court insists on the existence of rules on liability insurance for the manufacturers of medical devices in the secondary law of the Union.

Such rules are inexistent. The Court points out that the Medical Devices Directive imposes a duty to insure against liability only on so-called notified bodies which carry out inspections and issue conformity certificates39 which in this case would apply to TÜV Rheinland40; but the Directive does not require the manufacturer of medical devices to insure against its own liability. Since this Directive does not even mention the civil liability of the manufacturer as such it is fair to conclude that the Directive is not sufficient to qualify the manufacturer’s compulsory liability insurance as a matter covered by EU law.

The Court further examines products liability. The manufacturer’s liability for defective products is covered by the Product Liability Directive of 198541. According to its first Recital, the harmonisation of the producer’s liability for damage caused by defects of his products is necessary “because the existing divergences may distort competition and affect the movements of goods within the common market and entail a differing degree of protection of the consumer against damage caused by a defective product to his health or property42”. If that is true and divergences in liability law effectively distort competition, should the same not also be said with regards to the unequal coverage of the risk of the manufacturer’s insolvency? Compulsory liability insurance is an instrument intended to ensure the victim’s compensation when the debtor/policyholder is insolvent; it is meant to enable the liable debtor to make good the damage caused. In any event, it is obvious from the present case that consumers domiciled in different Member States are protected to a differing degree against damage caused by defective products to their health.

Depending on the interpretation of the words “within the scope of application of the Treaties” in Article 18 TFEU, the compulsory liability insurance arguably belongs to the problem of compensation of victims of defective products which undoubtedly falls into the scope of the Treaties because of the Products Liability Directive. In order to get itself out of this argument the Court chooses a rather contrived escape and refers to the fact that the Directive does not seek a complete harmonisation as evidenced by its Recital 18 which however deals with entirely different issues43. Perhaps unwittingly, the Court thereby insinuates that a complete harmonisation of any civil liability would include the liable person’s duty to take out liability insurance, an assertion that is in clear contrast to reality in many areas of civil law. But if that were true, the compulsory liability insurance of manufacturers would fall into the scope of the Treaties.

In any event, the Court concluded that the obligation of a producer of medical devices to insure against products liability does not fall within the scope of application of (secondary) EU law44. An alternative path to the application of Article 18 TFEU has been recognized by the Court where the fact situation results from the exercise of one of the basic freedoms45. In the present case, however, the exercise of neither the free movement of persons nor of services or of goods contributed to the underlying situation: the plaintiff had not traveled and the insurance services had been the object of a domestic contract between a French policyholder and a French insurer46. The goods, i.e. the breast implants had been freely traded; their marketing in other Member States was considered as not being affected by the liability insurance47. Thus, the Court could not find any discrimination on grounds of nationality which would have allowed the Court to implement the prohibition of Article 18 TFEU. The overall result of the case can only be deplored: while the women affected could first benefit from the free movement of goods in the internal market of the Union, the Union did not provide remedies for their protection needed at a later stage.