The CJEU has today handed down judgment in Case C-708/20, BT. We blogged on the background to this judgment here.
The CJEU held that an injured party bringing a direct claim in the injured party’s domicile against an insurer cannot use article 13(3) of Brussels I (Recast) to establish jurisdiction against the insured in the same proceedings. Article 13(3) was really all about insurance policy challenges by the insurer against the insured.
In this respect, the CJEU disagreed with the ruling of the Court of Appeal all those years ago in Mapfre Mutualidad Compania De Seguros Y Reaseguros SA & Anorv Keefe [2015] EWCA Civ 598.
In a very concise judgment, the CJEU resolved the point in the following way:
29 As is apparent from Article 10 of Regulation No 1215/2012, the autonomous concept of ‘matters relating to insurance’ makes it possible to distinguish between the jurisdiction established by Section 3 of Chapter II of that regulation in that area from the special jurisdiction established by Section 2 of that chapter in relation to matters of contract or tort (see, to that effect, judgment of 13 December 2007, FBTO Schadeverzekeringen, C‑463/06, EU:C:2007:792, paragraph 30).
30 It must therefore be considered that, in order to justify the application of the special rules of jurisdiction laid down in Section 3 of that regulation, the action before the court must necessarily raise a question relating to rights and obligations arising out of an insurance relationship between the parties to that action.
31 That interpretation of the concept of ‘matters relating to insurance’ implies that a claim brought by the injured person against the policyholder or the insured cannot be considered to be an insurance claim merely because that claim and the claim made directly against the insurer have their origin in the same facts or there is a dispute between the insurer and the injured person relating to the validity or effect of the insurance policy.
32 As regards, in the third place, the teleological interpretation, it should be recalled, first, that, according to the case-law of the Court, it is apparent from recital 18 of Regulation No 1215/2012 that actions in insurance matters are characterised by a certain imbalance between the parties, which the provisions of Section 3 of Chapter II of that regulation are intended to correct by giving the weaker party the benefit of rules of jurisdiction more favourable to his or her interests than the general rules (see, to that effect, judgments of 20 July 2017, MMA IARD, C‑340/16, EU:C:2017:576, paragraph 28, and of 27 February 2020, Balta, C‑803/18, EU:C:2020:123, paragraphs 27 and 44).
33 That imbalance is generally absent where an action does not concern the insurer, in relation to whom both the insured and the injured person are considered to be weaker (see, to that effect, judgments of 26 May 2005, GIE Réunion européenne and Others, C‑77/04, EU:C:2005:327, paragraph 17 and the case-law cited, and of 17 September 2009, Vorarlberger Gebietskrankenkasse, C‑347/08, EU:C:2009:561, paragraph 44).
34 Furthermore, it should be noted that, as is apparent from page 32 of the report on the Brussels Convention, prepared by Mr P. Jenard (OJ 1979 C 59, p. 1), Article 13(3) of Regulation No 1215/2012 is intended to grant the insurer the right to challenge the insured, as a third party in the proceedings between it and the injured person, in order to provide him or her with a weapon against fraud and to prevent different courts from handing down irreconcilable judgments. It follows that when an action for damages has been brought by the injured person directly against an insurer and the latter has not brought such an action against the insured concerned, the court seised cannot rely on that provision to take jurisdiction over the latter.
35 Secondly, it is indeed true that, in accordance with recital 16 of Regulation No 1215/2012, the provisions thereof must be interpreted in the light of the objective of facilitating the proper administration of justice, and that the involvement, by the injured person, of the insured, as a third party to the proceedings before the court seised, would make it possible to avoid the risk of the coexistence of two parallel sets of proceedings.
36 Nevertheless, it should be pointed out that allowing the injured person to bring an action against the insured on the basis of Article 13(3) of Regulation No 1215/2012 would amount to circumventing the rules of that regulation concerning jurisdiction in matters of tort or delict, as defined in Section 2 of Chapter II thereof. Each injured person could then bring an action against the insurer on the basis of Article 13(2) thereof in order to benefit from the more favourable provisions of Articles 10 to 12 of that regulation in order, subsequently, to bring an action against the insured, as a third party to those proceedings, on the basis of Article 13(3) thereof.
37 In any event, the objective of the proper administration of justice is, as a general rule, sufficiently achieved where, as provided for in Article 13(1) of that regulation, the insured may bring an action against the insurer before the same court as the one before which the injured person brings an action against the insured, in so far as the law of the Member State of that court permits.
38 In the light of the foregoing, the answer to the first three questions is that Article 13(3) of Regulation No 1215/2012 must be interpreted as meaning that, in the event of a direct action brought by the injured person against an insurer in accordance with Article 13(2) thereof, the court of the Member State in which that person is domiciled cannot also assume jurisdiction, on the basis of Article 13(3) thereof, to rule on a claim for compensation brought at the same time by that person against the policyholder or the insured who is domiciled in another Member State and who has not been challenged by the insurer.
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