1.

Ongoing technological development seeks to relieve individuals of the most arduous or dangerous tasks. Driverless cars, once science fiction, are becoming a reality. They are already circulating in San Francisco and Beijing, and soon they will be in London. ( 2 ) A substantial reduction in the number of road traffic accidents is expected as a result of reduced risk linked to human error.

2.

While we wait to find out if that reduction comes to pass, EU law continues to provide significant protection to victims of road traffic accidents by way of the directives on compulsory insurance against civil liability in respect of the use of motor vehicles ( 3 ) (together, ‘the “Civil Liability Insurance Directives”’). While the Court of Justice has already, on several occasions, ruled on the interpretation of those directives, in order to define, inter alia, the concepts of ‘passenger’ ( 4 ) and ‘use of vehicles’, ( 5 ) the present reference for a preliminary ruling asks it to clarify for the first time the scope of the concept of ‘driver’; a question already raised before numerous national courts.

3.

In 2016, ED, the applicant in the main proceedings, drove a van belonging to a football club carrying a former coach of that club and some members of the team as passengers. The van left the premises of another football club and was heading to a party taking place at a third club. While ED was driving at a speed of approximately 70 km/h, the coach, who was sitting behind and to the right of the driver, suddenly pulled the handbrake. The van skidded and hit several pillars. The driver and the teammate sitting in the passenger seat were ejected from the vehicle. The teammate died as a result of his injuries. ED was seriously injured and still suffers serious lasting effects from the accident.

4.

The football club that owned the van had taken out civil liability insurance with Reaal Schadeverzekering NV. The club had also taken out passenger and driver accident insurance with the company Nationale Nederlanden. ( 6 )

5.

In respect of the damage he suffered as a result of that accident, ED, through the foundation Stichting Koskea, which now administers his assets and defends his interests, sought compensation from Nationale Nederlanden. In January 2020, that company’s lawyer informed ED that the driver’s insurance would not be applicable since the police report on the circumstances of the accident showed that ED had consumed alcohol before getting behind the wheel and that he was not wearing his seatbelt. The lawyer also stated that he was not covered under the compulsory civil liability insurance since, under Article 4(1) of the Wet aansprakelijkheidsverzekering motorrijtuigen (Netherlands Law on insurance against civil liability in respect of motor vehicles; ‘the WAM’), ‘the insurance need not necessarily cover compensation for damage suffered by the driver of the motor vehicle that caused the accident’.

6.

That national law transposes Article 12(1) of Directive 2009/103, which provides that ‘the insurance referred to in Article 3 shall cover liability for personal injuries to all passengers, other than the driver, arising out of the use of a vehicle’, into Netherlands law. ( 7 )

7.

Stichting Koskea, acting on behalf of ED, brought an action against Nationale Nederlanden seeking compensation for the damage he suffered on the basis of the civil liability insurance contract, claiming, in essence, that ED could no longer be regarded as a driver following the coach’s intervention, which caused the damage.

8.

The rechtbank Noord-Nederland (District Court, North Netherlands, Netherlands) upheld that action, holding, in essence, that, from the moment the former coach pulled the handbrake, the applicant in the main proceedings was no longer capable of actually driving that vehicle and, consequently, could no longer be regarded as the ‘driver’ within the meaning of Article 4(1) of the WAM.

9.

Nationale Nederlanden brought an appeal against that judgment before the Gerechtshof Arnhem-Leeuwarden (Regional Court of Appeal, Arnhem-Leeuwarden, Netherlands), which set it aside, holding that ED had not lost his status as the driver as a result of the coach’s intervention and that ED was the person who had initially taken the wheel of that vehicle, had started its engine, determined its speed and had chosen the direction of travel. He was operating the controls of the vehicle, and this fact was not altered by the coach suddenly pulling the handbrake and performing a driving act.

10.

The foundation Stichting Koskea brought an appeal on a point of law before the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), the referring court. The latter is uncertain whether ED was still the driver when the accident occurred or whether he should be treated as a passenger victim and, as such, covered by the civil liability insurance. The referring court therefore asks whether Article 12(1) of Directive 2009/103 must be interpreted as requiring compulsory insurance to cover liability for the damage suffered by the initial driver of the vehicle where a passenger intervened in the driving of that vehicle and an accident occurred as a result of that intervention.

11.

Although Article 4(1) of the WAM seeks to make use of the exception provided for in Article 1 of the Third Directive, now Article 12(1) of Directive 2009/103, none of those provisions provides a definition of ‘driver’. Since Article 12(1) of Directive 2009/103 draws a distinction between the driver and other passengers, it is necessary to define the ‘driver’, to whom the general principle of protection by compulsory civil liability insurance does not apply.

12.

In those circumstances, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the proceedings and, by decision received at the Court Registry on 12 July 2024, to refer the following questions to the Court of Justice for a preliminary ruling:

13.

Written observations were submitted to the Court by Nationale Nederlanden, the Netherlands Government and the European Commission, who also all presented oral argument at the hearing which was held before the Court on 12 June 2025.

14.

As a preliminary point, it should be borne in mind that the Court has repeatedly held that ‘the obligation to provide insurance cover against civil liability for damage caused to third parties by motor vehicles is … distinct from the extent of the compensation to be afforded to them on the basis of the civil liability of the insured person. Whereas the former is defined and guaranteed by EU legislation, the latter is, essentially, governed by national law’. ( 8 ) It follows that the First, Second and Third Directives do not seek to harmonise the rules of the Member States governing civil liability and that, as EU law currently stands, the Member States are free to determine the rules of civil liability applicable to road traffic accidents. ( 9 )

15.

Furthermore, the Court has previously held that the EU legislature did not, for example, wish to specify the type of civil liability, whether liability for fault or liability for risk, in respect of the use of vehicles, which must be covered by compulsory insurance. ( 10 ) It is therefore the type of civil liability applicable under national law as defined by each Member State that must be covered by insurance under EU law, with the limitation that national law must not undermine the effectiveness of the directives governing that field. ( 11 ) It is in the name of that effectiveness that the Court has thus held that those directives preclude a national provision which automatically excludes or disproportionately limits the victim’s right to compensation on account of his or her contribution to the occurrence of the damage. ( 12 )

16.

In so doing, the Court’s case-law has further blurred the line between harmonisation of civil liability rules and harmonisation of civil liability insurance. This fine line must be borne in mind before analysing the questions referred to the Court.

17.

For once, I shall begin my analysis with the second question referred for a preliminary ruling. However, in view of the answer which I propose to give to the first question, it will not, in my view, be necessary for the Court to answer this second question, which asks it to define the concept of ‘driver’ within the meaning of the ‘Civil Liability Insurance Directives’. I therefore raise the following points only in the alternative.

18.

Article 12(1) of Directive 2009/103 does not define the term ‘driver’. Article 1 of that directive, which deals with definitions, is no more enlightening. None of the other ‘Civil Liability Insurance Directives’ provides any clarification in that regard. ( 13 )

19.

However, since it is a concept which appears in a provision of a directive which makes no reference to national law, the term ‘driver’ requires, in principle, having regard to the requirements of both the uniform application of EU law and the principle of equality, an autonomous and uniform interpretation which takes into account the context of that provision and the objective pursued by the legislation of which it is a part. ( 14 )

20.

As regards the context, it is apparent from an examination of Directive 2009/103 that the driver is defined only in negative terms: he or she is not a passenger, ( 15 ) not a pedestrian or a non-motorised road user, ( 16 ) nor, a fortiori, a cyclist. ( 17 )

21.

The driver must, however, necessarily be in the vehicle, which is defined in Article 1(1) of Directive 2009/103 as being ‘propelled by mechanical power’. It can therefore be inferred that the driver is, in principle, the person who, within the vehicle, activates the mechanical power of the vehicle.

22.

As regards the objective pursued, the Court has recently noted that the directives codified by Directive 2009/103 have ‘progressively defined the obligations of Member States with respect to compulsory insurance. They are intended, first, to ensure the free movement of vehicles normally based in the territory of the European Union and of persons travelling in those vehicles and, second to guarantee that the victims of accidents caused by those vehicles receive comparable treatment irrespective of where in the European Union the accident occurred … It is apparent from recitals 2 and 20 of Directive 2009/103 that that directive pursues, in essence, the same objectives as those of those directives … The development of the EU legislation concerning compulsory insurance shows that the objective of protecting the victims of accidents caused by vehicles has continuously been pursued and reinforced by the EU legislature’. ( 18 )

23.

While this objective requires a broad definition of ‘victims’, ( 19 ) it cannot, in my view, justify a definition of ‘driver’ encompassing the driver as a potential victim, because of the explicit exclusion contained in Article 12(1) of Directive 2009/103.

24.

The definition of ‘driver’, within the meaning of that provision, must therefore lie somewhere between the observance of the freedom of the Member States to define the rules on civil liability ( 20 ) and the preservation of the effectiveness of the directive.

25.

To achieve a higher degree of precision in this definition, interpretative assistance can be found in international law.

26.

The Vienna Convention on Road Traffic of 8 November 1968, ( 21 ) to which all the Member States are parties, defines a driver in Article 1(v) as ‘any person who drives a motor vehicle or other vehicle (including a cycle)’. Article 8 of that convention is a specific provision on drivers, from which it follows that ‘every moving vehicle or combination of vehicles shall have a driver’, that ‘every driver shall possess the necessary physical and mental ability and be in a fit physical and mental condition to drive’, that ‘every driver of a power-driven vehicle shall possess the knowledge and skill necessary for driving the vehicle’ and that ‘every driver shall at all times be able to control his vehicle’. ( 22 ) It is interesting to note that, under Article 8, it is the sole responsibility of the driver to be, at all times, capable of controlling the vehicle.

27.

It can be inferred from all of those factors that the driver is the person who sits in the driver’s seat of the vehicle and who therefore has access to the essential controls of that vehicle, enabling him or her to determine its movement, direction and speed.

28.

Lastly, I would add that, for the reasons which I shall set out below, it is only in very exceptional circumstances that the status of driver could be taken away from the person sitting in the driver’s seat. ( 23 ) In any event, the burden of assessing, on a case-by-case basis, who the driver was at the time of the accident, according to the specific factual circumstances of each situation, must be left to the national courts. In making that assessment, I would remind them that they must ensure that the effectiveness of Directive 2009/103 is preserved. ( 24 )

29.

By its first question, the referring court asks the Court whether it follows from Article 12(1) of Directive 2009/103 that the compulsory insurance provided for in Article 3 of that directive must cover liability for damage suffered by the driver in a case where a passenger intervenes in the driving of the motor vehicle and that intervention causes an accident.

30.

In my view, the answer to that question should be in the negative.

31.

It should be recalled that the first paragraph of Article 3 of Directive 2009/103 requires each Member State to take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance.

32.

While the damage covered and the terms and conditions of this insurance are determined in the context of these ‘appropriate measures’, ( 25 ) Directive 2009/103 specifies that the insurance must cover damage to property and personal injury. ( 26 ) That directive goes on to state that the insurance referred to in Article 3 ‘shall cover liability for personal injuries to all passengers, other than the driver, arising out of the use of a vehicle’. ( 27 ) By contrast, the injuries suffered by the family of the driver must, in principle, be covered. ( 28 ) Lastly, according to the second subparagraph of Article 12(3) of Directive 2009/103, that article ‘shall be without prejudice either to civil liability or to the quantum of damages’.

33.

It therefore follows from a literal interpretation of Article 12(1) of Directive 2009/103 that the EU legislature clearly and explicitly intended not to provide cover, by means of compulsory civil liability insurance, for damage suffered by the driver, regardless of its origin. The exclusion of the driver concerns all damage, without distinction, and is not limited to damage caused by the driver.

34.

It also follows from the wording of that article that a vehicle may be driven by one driver only. ( 29 )

35.

The proceedings before the Court have not succeeded in establishing the exact reason for the exclusion of cover for the damage suffered by the driver, which originates in the Third Directive. ( 30 ) It may reasonably be thought that the civil liability insurance rules in respect of the use of vehicles, as implemented at EU level, is based on a fundamental dichotomy – a summa divisio. On the one hand, there is the driver, deemed to have decided that the vehicle would participate in road traffic, ( 31 ) and thus to be the source of the risk taken, and to have control over that risk. On the other hand, there are the victims, who are the ‘weakest party in an accident’, ( 32 ) whether they are pedestrians or passengers and, at the same time, policyholders, owners of the vehicle or members of the family of the driver, of the policyholder or of the owner of the vehicle, whether they entered the vehicle in full knowledge of the facts or may have contributed to the occurrence of the damage. ( 33 ) The weakness of third-party victims who are passengers stems, ex hypothesi, from their inability to influence emergency situations. ( 34 ) The persons protected under the various directives are therefore the victims of the accident, understood in a broad sense, who are defined as distinct from and as excluding the driver.

36.

Whether from a literal or systemic perspective, there is reason to believe that Article 12(1) of Directive 2009/103 must be interpreted as meaning that the intervention of a passenger which causes an accident cannot have the effect of depriving the driver of the status of driver.

37.

From a teleological point of view, an interpretation of Article 12(1) of Directive 2009/103 which excludes compensation for damage suffered by the driver, including in the case of intervention by a passenger, seems to me to be consistent with the objective pursued by that directive for two main reasons.

38.

First, while legislative developments have undeniably moved towards greater protection for victims, ( 35 ) this development has, at the same time, been clearly marked by the consistent exclusion, since the adoption of the Third Directive, of damage suffered by the driver from the scope of compulsory insurance. The ‘Civil Liability Insurance Directives’ are thus based on the principle that only the damage caused to third-party victims must be covered by compulsory insurance. ( 36 ) The harmonisation brought about by these directives does not concern the driver, whose fate continues to be governed by national law.

39.

In the second place, it is precisely in order to guarantee the objective consistently pursued by the legislature in the course of its interventions in this field that the exclusion provided for in Article 12(1) of Directive 2009/103 must be rigorously observed.

40.

It seems to me that, since the Court has repeatedly held that the objective of protecting victims precludes national legislation from unduly restricting the concept of passenger, ( 37 ) it should not now take the risk of adopting a concept of ‘driver’, within the meaning of EU law, which is fluid, subjective and, above all, liable, in turn, to put the victims themselves at risk of being deprived of the status of passenger. The objective of protecting victims will only be ensured if the predictability of the rules is preserved, and predictability can only be guaranteed if the relevant concepts are clear and stable. I also note that, in relation to passengers, cover under Directive 2009/103 of the damage they suffer is not conditional on an absence of participation in causing that damage. ( 38 )

41.

The issue of compulsory insurance cover must therefore be disconnected from that of liability for damage, since EU law has not succeeded in harmonising the latter. ( 39 ) In order to preserve legal certainty and a correct division of competences, it must therefore simply be stated, in a somewhat Manichean way, that Directive 2009/103, on the one hand, requires the Member States to ensure that compulsory insurance covers damage suffered by passenger victims and, on the other hand, does not require that insurance to cover damage suffered by the driver.

42.

The circumstances of the accident which gave rise to the dispute in the main proceedings are quite tragic and concern must be shown for all the victims. Nevertheless, the desire to restore some sense of justice in misfortune cannot justify twisting legal rules and concepts to the point that they lose their common meaning.

43.

For the purposes of Directive 2009/103, ED cannot be both the driver and the passenger of the vehicle which caused the damage. The coach who pulled the handbrake cannot be considered to be the driver. The mere fact that a passenger interferes with the driving does not have the effect of depriving that passenger of his or her status as a victim just as that interference is not sufficient to deprive the driver of his or her status as the driver.

44.

The degree of the passenger’s involvement – of his or her liability – in causing the damage is a matter which does not concern civil liability insurance as organised by Directive 2009/103, but rather civil liability itself, ( 40 ) which is governed by national law. ( 41 ) For the reasons set out above, I propose that Article 12(1) of Directive 2009/103 be interpreted as not providing that compulsory insurance must cover damage caused by the vehicle to its driver, even where a passenger intervened in the driving of the vehicle.

45.

To rule in that way would not leave drivers without recourse but would reiterate to the Member States that they are responsible for putting in place an insurance scheme covering damage suffered by drivers. ( 42 )

46.

In the light of all the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) as follows:

Article 12(1) of Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability,

must be interpreted as meaning that damage suffered by the driver of a vehicle during a road traffic accident is not covered by the compulsory insurance provided for by that directive, even where a passenger’s intervention in the driving of the vehicle caused the accident.