Vice-President R Silva de Lapuerta,
Presidents of Chambers A Arabadjiev, A Prechal, M Vilaras, M Safjan, PG Xuereb, LS Rossi (Rapporteur),
Judges L Bay Larsen, T von Danwitz, C Toader, F Biltgen, K Jürimäe, C Lycourgos, N Piçarra
Advocate General M Bobek
The applicant had breast implants inserted in Germany which were manufactured by a company established in France. The manufacturer had taken out an insurance contract with a French insurance company, covering its civil liability arising from the manufacture of the products. The insurance contract had been concluded on the basis of a proposal that it included a clause limiting the geographical extent of the insurance coverage to harm that occurred in the territory of France. Subsequently, the French agency for the safety of healthcare products found, in the course of an inspection, that the breast implants made by the manufacturer were filled with unauthorised industrial silicone. The manufacturer was subsequently liquidated. Because of the risk of the premature rupture of the implants and the inflammatory effects of the silicone used, the applicant had her implants replaced by new ones. She then brought an action before a German court for damages imputing joint and several liability to, inter alia, the insurance company, on the ground that she had, under French law, a direct right of action against the insurer, even though the insurance contract contained a clause limiting the insurance coverage to harm that had occurred in the territory of France, since that clause was contrary to EU law. On the applicant’s appeal against the dismissal of her claim, the German appeal court was uncertain whether the clause limiting insurance cover was compatible with the prohibition of any discrimination on grounds of nationality, laid down in the first paragraph of article 18FEU of the FEU Treaty. In those circumstances, the German court stayed the proceedings and referred to the Court of Justice for a preliminary ruling the question, in essence, whether the prohibition of discrimination on grounds of nationality under article 18FEU had direct horizontal effects, so that it could be relied upon in the case of relations between individuals.
On the reference—
Held, the first paragraph of article 18FEU could apply to the present dispute only if (i) it related to a situation which fell within the scope of application of EU law and (ii) that situation did not fall within the scope of a specific rule on non-discrimination laid down by the FEU Treaty. In relation to the first condition, as EU law currently stood, insurance covering the civil liability of manufacturers of medical devices with respect to harm linked to those devices was not the subject of regulation by EU law, unlike, for example, the area of civil liability insurance in respect of the use of motor vehicles. In relation to the second condition, since the applicant in present case had not made use of her freedom of movement, there was no specific connecting factor linking her situation and the freedom of movement of Union citizens. Further, since the insurance contract in issue was entered into by undertakings, both established in France, the situation was not linked by any specific connecting factor to the freedom to provide services laid down in article 56FEU. Last, since the present dispute related not to the cross-border movement of goods in itself, but to the harm caused by the goods that had been so moved, the situation in issue was not linked by any specific connecting factor to the provisions of the FEU Treaty on the free movement of goods. Accordingly, the first paragraph of article 18FEU was not applicable to a clause, stipulated in a contract concluded between an insurance company and a manufacturer of medical devices, limiting the geographical extent of the insurance coverage against civil liability arising from those devices to harm that had occurred in a single member state, since such a situation did not fall, as EU law currently stood, within the scope of application of EU law (judgment, paras 35, 37, 40, 43, 44, 48, 49, 52, 54, 56–59, 60, operative part).
R-T Wittmann, F Witzke, D Strotkemper, J-M Coste-Floret and B Esquelisse for the successor of the insurance company.
J Nymann-Lindegren, M Wolff and PZL Ngo, agents, for the Danish Government.
R Coesme and A Daly, agents, for the French Government.
J Heliskoski and S Hartikainen, agents, for the Finnish Government.
F Erlbacher, L Malferrari and AC Becker, agents, for the European Commission.