Читать книгу Dimensiones y desafíos del seguro de responsabilidad civil - Abel B. Veiga Copo - Страница 34

The legal analysis of the Grand Chamber can hardly be criticised for its outcome, but the reasoning is unsatisfactory since the Court has not even hinted at certain relevant aspects. While the Court realises that the discrimination, if any, results from a clause of the insurance contract and not from state law, it does not address the question whether Article 18 TFEU can interfere with private agreements at all. The case illustrates the economic risks inherent in such direct horizontal effect: a contract covering the risk in a single Member State with a population of 67 million people would be extended ex post, by the operation of a legal principle, to analogous risks in the European Union with 450 million people. No actuarial expertise is needed for the conclusion that a higher premium is needed for a Europe-wide cover of products which are effectively marketed in the whole Union. If the prohibition of discrimination on grounds of nationality were intended to impact on the cover granted by an insurance contract, this must have some repercussions on the premium side of the contract. And assuming that the prohibition of discrimination on grounds of nationality could be infringed by such a contract clause, would the same not also apply to large parts of commercial practice in Europe, for instance the grant of licenses for individual Member States or the assignment of national markets to distributors under franchise agreements? It is regrettable that the Court did not clarify this issue.

Another question which the Court did not address is whether the referring court chose the proper approach when highlighting the unequal treatment of French and German women, i.e. French and German creditors in insolvency proceedings. It is not an uncommon occurrence in insolvency that different groups of creditors have divergent rights. These groups are identified by various criteria, some laid down in law, others resulting from private arrangements such as collateral agreements. Could the different treatment not also result from different terms of insurance? In the present case the parties to the contract wanted to satisfy an insurance requirement imposed by French law, nothing more. French law does not explicitly limit the duty to insure to events occurring in France; but since this charge is a measure of public health it may be assumed that French law does not care about an EU-wide cover. It is unsurprising that the Member States primarily protect their own territory and population in a field that is still essentially left to the Member States.

A further aspect relates to the principle of effectiveness. From the perspective of products liability under EU law, the crucial issue is not discrimination but rather appears to be whether the effectiveness of strict products liability as imposed by the European Directive requires an EU-wide insurance cover. The Court of Justice has frequently made use of the “principle of effectiveness” as a general principle of law that even has direct effect between private parties and may generate liability claims48. Should the Court not have insisted on the effectiveness of the manufacturer’s liability imposed by EU law and concluded that an effective liability regime encompasses a liability insurance intended to cover the debtor’s insolvency?

The drawback of the principle of effectiveness is its open-endedness; regardless of the actual state of the law, one can always conceive of a more effective solution; consequently, the present legal situation can always be considered as comparatively ineffective. The principle thus imperils legal certainty. Judges should therefore be cautious in creating private law through this principle and leave the matter to legislation. This is perhaps what the Court has intimated when it stated that the limitation of the geographical scope of cover to a single Member State does not infringe Article 18 TFEU, “since such a situation does not fall, as EU law currently stands, within the scope of application of EU law”49. Such a formula has often been understood as a hint of the Court of Justice to the need for legislation in a specific area.

Although the result of the breast implants case is regrettable for the women concerned, the judgment may therefore be expected to trigger legislative efforts aiming at an increase of the effectiveness of the Union’s liability rules by an appropriate legal framework of compulsory liability insurance at least for medical devices.