Butt & Ors v D'Amato

A preliminary reference to the CJEU should be made only where a question of EU law arises and its answer is necessary to enable the domestic court to determine the claim. The procedure is not available for obtaining an advisory opinion on hypothetical issues or for inviting the CJEU to supplement legislation with a mechanism that it does not contain.

Where the Motor Insurance Codification Directive 2009/103/EC leaves the distribution of limited insurance indemnity between victims to national law, the domestic court must interpret that law consistently with the Directive and preserve its effectiveness. A reference may become necessary only after the relevant issues of national law and the insurance policy have been properly determined.

The claim arose from a serious road traffic accident in Malta involving an open-top sightseeing bus. The claimants, an English family, brought personal injury claims against the driver, operator, insurer and Transport for Malta. The insurer contended that the policy’s €6.07 million indemnity limit might be insufficient to satisfy all claims arising from the accident and sought a preliminary reference under article 267 TFEU.

The proposed reference asked whether EU law, particularly the Motor Insurance Codification Directive 2009/103/EC, required a particular method for distributing the available indemnity between victims whose claims might be brought at different times and in different jurisdictions. The central issues were whether that was a question of EU law and whether an answer was necessary at the present stage of the proceedings.

1. Application refused. The court was not satisfied that a decision on a question of EU law was necessary to determine the proceedings.
2. Under article 267 TFEU, a preliminary reference is discretionary for a court that is not one of final instance. It should assist with the interpretation and uniform application of EU law and determine an issue arising in the underlying claim. It should not answer a purely hypothetical or academic question. The approach in UEFA v Euroview Sport Ltd [2010] EWHC 1066 (Ch) was applied.
3. The Motor Insurance Codification Directive 2009/103/EC did not expressly prescribe how a limited indemnity should be distributed between multiple victims. Its scheme allowed Member States to adopt minimum cover per victim or per claim and did not descend to the detailed method of distribution. That issue therefore appeared to be left to national law.
4. National rules governing compensation had nevertheless to be applied consistently with EU law and could not deprive the Directive of its effectiveness. The court accepted the relevant principle identified in Ambrosio Lavrador and Olival Ferreira Bonifacio C-409/09, [2011] ECR I-4955. But the present dispute concerned the proper interpretation of Maltese law and the policy, rather than an unresolved autonomous concept of EU law.
5. The insurer’s proposed reference effectively sought to have the CJEU import a distribution mechanism into the Directive. That was not the CJEU’s interpretative function. In any event, the policy and the applicable Maltese law had not yet been examined sufficiently at a preliminary hearing. Only after that exercise could it be determined whether any genuine and necessary question of EU law remained. The reference was therefore refused.