Judges A Kumin (Rapporteur), I Ziemele
Advocate General J Richard de la Tour
The claimants, domiciled in Denmark, took out liability and hull insurance with the defendant insurance company, domiciled in the Netherlands, in respect of a sailing boat they had purchased in that member state. The contract stated that the boat had its home port in Denmark and was to be used for private recreation only and not for commercial purposes. By virtue of a jurisdiction clause in the contract, the holder of the insurance policy had to bring any dispute before a Netherlands court. According to the special rules on jurisdiction in matters relating to insurance under Section 3 of Chapter II of Parliament and Council Regulation (EU) No 1215/2012, an insurer could be sued in the courts of the member state in which the claimant was domiciled. Nevertheless, in certain cases, it was possible to depart from the special rules by agreement, and in particular, pursuant to article 15(5), where the contract of insurance covered one or more of the risks set out in article 16 of that Regulation, including, under sub-article (5), “large risks” as defined in article 13(27) of Parliament and Council Directive 2009/138/EC. Subsequently, the keel and the hull of the boat was damaged after the claimants ran aground. However, the insurance company refused to cover the damage and the claimants brought a claim against it for the costs of repair before a Danish District Court. The insurance company raised a plea of inadmissibility on the ground that, under the jurisdiction clause, the action should have been brought before a Netherlands court. The Danish District Court upheld that plea of inadmissibility and the claimants appealed to the Danish High Court, on the ground that, as a pleasure boat, their boat was not covered by the exception under article 16(5) of Regulation No 1215/2012 and that, consequently, they were entitled to bring their action before a Danish court. Specifically, the claimants argued that only damage to an insured vessel used for commercial purposes and occurring in the course of that use should be classified as “large risks” within the meaning of article 16(5). The insurer argued that the jurisdiction clause was binding and permitted under article 15(5) of the Regulation, since hull insurance came within the concept of “large risks” within the meaning of article 16(5), in conjunction with article 13(27) of Directive 2009/138. In those circumstances, the High Court of Eastern Denmark stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the question whether articles 15(5) and 16(5) of Regulation No 1215/2012 meant that a hull insurance contract relating to a pleasure craft that was not used for commercial purposes came within the scope of article 15(5).
On the reference—
Held, article 16(5) of Regulation No 1215/2012 should be interpreted narrowly, according to which loss of or damage to vehicles not used for commercial purposes was not covered by that provision, with the result that a hull insurance contract relating to a pleasure craft not used for commercial purposes did not fall under article 15(5) of that Regulation. Such an interpretation ensured consistency with the application by the European Union of the Hague Convention on Choice of Court Agreements, 30 June 2005. Bearing in mind the objective of Section 3 of Chapter II of the Regulation, namely to counter the imbalance between the parties common to many insurance matters, the rules in Section 3 were designed to ensure that a weaker party could bring an action against a stronger party before a court of a member state which was easily accessible. Further, the possibility to depart from the jurisdiction rules in Section 3 by agreement, pursuant to articles 15(5) and 16(5), was introduced to take account of the fact that the parties to an insurance contract covering a “large risk” were often on an equal footing, where no special protection was justified, for example when the parties were insurance professionals. In the present case, the situation was different in relation to policyholders, such as the claimants, who, not acting in a professional capacity, had concluded a hull insurance contract relating to a pleasure craft used for private and recreational purposes and not for commercial purposes. In such a case there was no need to make a case-by-case assessment of whether a person was a “weaker party”. Accordingly, article 15(5) of Regulation No 1215/2012, read in conjunction with article 16(5), meant that a hull insurance contract relating to a pleasure craft not used for commercial purposes did not fall under the exception to the normal rules applicable in matters relating to insurance under article 15(5) of that Regulation (judgment, paras 28, 38, 44, 46, 48–55, operative part)..
S Noë, H Tserepa-Lacombe and C Vang, agents, for the European Commission.