President of Court, acting as Judge of Third Chamber K Lenaerts,
Judges LS Rossi (Rapporteur), J Malenovský, F Biltgen
Advocate General H Saugmandsgaard Øe
The Belgian Bar Associations brought an action against the Council of Ministers, Belgium seeking annulment of a national law which failed to stipulate that an insured person, in the context of a legal expenses insurance contract, had the right to choose his lawyer for a mediation process. In accordance with article 201(1)(a) of Parliament and Council Directive 2009/138/EC, all legal expenses insurance contracts expressly provided that, where recourse was had to a lawyer or other person appropriately qualified according to national law, in order to defend, represent or serve the interests of the insured person in any inquiry or proceedings, the insured person was to be free to choose such lawyer or other person. The referring Belgian court stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the question whether the term “proceedings” in article 201(1)(a) of the Directive included judicial or extra-judicial mediation proceedings in which a court was involved or is capable of being involved.
On the reference—
Held, the objective pursued by Parliament and Council Directive 2009/138/EC, and in particular by article 201, was to provide adequate protection for the interests of insured persons concerning the free choice of lawyer or representative. The term “inquiry” within the meaning of article 201(1)(a) had been interpreted to include a procedure at the end of which a public body authorised an employer to dismiss an employee who was covered by legal expenses insurance. The term “proceedings”, within the meaning of article 201 had to be interpreted just as broadly as the term “inquiry”, since it would be inconsistent to interpret those two terms differently regarding the right to choose one’s lawyer or representative. “Proceedings” included not only the appeal stage before a court in the strict sense, but also a preceding stage which was capable of leading to a judicial stage. It followed that the term “proceedings” could not be limited, either solely to non-administrative proceedings conducted before a court in the strict sense, or by drawing a distinction between the preparatory stage and the decision-making stage of such proceedings. Thus, any stage, even preliminary, which was capable of leading to proceedings before a judicial body had to be regarded as falling within the term “proceedings” in article 201(1)(a) of Directive 2009/138. The effect of an agreement reached by the parties, whether in judicial or extra-judicial mediation, was to bind the court which approved it and, after having become enforceable, the agreement had the same effect as a judgment. Accordingly, article 201(1)(a) of Directive 2009/138 meant that the term “proceedings” included judicial and extra-judicial mediation proceedings in which a court was involved or was capable of being involved, whether when those proceedings were initiated or after they were concluded (judgment, paras 26–31, 36, 42, operative part).
F Judo and N Goethals for the Bar Associations.
C Pochet, L Van den Broeck and M Jacobs, agents, and S Ronse and T Quintes for the Belgian Government.
H Tserepa-Lacombe and A Nijenhuis and F Wilman, agents, for the European Commission.