Road traffic accident in Europe: exclusion of a claim before the CIVI

by | 1 Mar 2023

Damages likely to be compensated by the Fonds de garantie des assurances obligatoires de dommages (FGAO), pursuant to articles L. 421-1 and L. 424-1 to L. 424-7 of the Insurance Code, are excluded from the jurisdiction of the Commission d’indemnisation des victimes d’infractions (CIVI) as it results from article 706-3 of the Code of Criminal Procedure, regardless of whether the FGAO intervenes subsidiarily, in the presence of an insurer of the liable party likely to compensate the victim.

Thus, a recourse to the CIVI is not possible for French victims when the traffic accident takes place in the European area.

Cass. 2nd civ. 24 Nov. 2022, n° 20-22.100 : JurisData n° 2022-019745Cass. 2nd civ. 24 Nov. 2022, n° 20-23.462, FS-B : JurisData n° 2022-019744.

In these two decisions, persons of French nationality, victims of a road traffic accident in the European Economic Area, requested the benefit of a case law in force since 1994 which allows victims of a traffic accident abroad to benefit from compensation by the FGTI as soon as the circumstances of the accident can be materially analyzed as an offence (Cass. 2nd civ., Nov. 2, 1994: Bull. civ. II, n° 214; Resp. civ. et assur. 1994, comm. 406)

However, since 2020, the Court of Cassation has reserved a particular fate for French victims when the road traffic accident took place in Europe (Cass. 2e civ., Sept. 24, 2020, n° 19-12.992: JurisData n° 2020-014955; Resp. civ. et assur. 2020, comm. 207, note H. Groutel). For the Court, recourse to the CIVI and coverage by the FGTI under article 706-3 of the Code of Criminal Procedure is reserved to victims outside the European Economic Area. For the others, the recourse to the CIVI is excluded in favor of the FGAO or a comparable system.

Although this solution has been repeated several times by the Court (Cass. 2nd civ., May 6, 2021, n° 19-24.996: JurisData n° 2021-006841), some appeal courts have resisted and allowed victims to refer to the CIVI (most recently: CA Paris, pôle 4, ch. 12, Jan. 2022: JurisData n° 2022-002665; Resp. civ. et assur. 2022, comm. 78, obs. H. Groutel). Perhaps wishing to put an end to these dissenting judgments, the Cour de cassation rendered two decisions on the same day.

In the first case, the Court of Appeal, in order to declare admissible the claim for compensation presented to the CIVI, stated that, since it concerned a personal injury road traffic accident in Spain, it was not covered by the provisions of the French law of July 5, 1985, but rather by Spanish law, pursuant to the provisions of article 3 of the Hague Convention of May 4, 1971. Thus, since the 1985 law is not applicable, article 706-3 of the Code of Criminal Procedure must be applied. The reasoning is identical in the second case, where this time it concerns an accident in the United Kingdom.

The Court of Cassation censured these two decisions and dismissed the jurisdiction of the CIVI, on the grounds that there was another specific compensation scheme in this case, compensation by the FGAO under the conditions provided for by articles L. 421-1 and L. 424-1 to L. 424-7 of the Insurance Code, which were enacted by Law no. 2003-736 of August 1, 2003, transposing Directive 2000/26/EC of the European Parliament and of the Council of May 16, 2000 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles.

These texts provide for a system of compensation for victims of road traffic accidents occurring in another State of the European Economic Area, involving a vehicle normally based and insured in one of these States. Within this framework, it allows, in particular, in certain circumstances, the French victim to be compensated in France by the FGAO under articles L. 424-1 and following of the Insurance Code.

The Court of Cassation has already taken this type of approach to exclude from the jurisdiction of the CIVI, victims of accidents at work (Cass. 2e civ., 7 May 2003, n° 01-00.815: JurisData n° 2003-018958; Resp. civ. et assur. 2003, chron. 23, judgment n° 1, H. Groutel; Bull. civ. II, n° 138), victims of accidents in the service of the state (Cass. 2e civ, 30 June 2005, n° 03-19.207 : JurisData n° 2005-029173 ; Resp. civ. et assur. 2005, study 12, H. Groutel ; Bull. civ. II, n° 177) as well as military personnel killed or injured in service (Cass. 2e civ., 28 March 2013, n° 11-18.025 : JurisData n° 2013-005525 ; Resp. civ. et assur. 2013, comm. 187, note H. Groutel). This time, there would be a textual argument since article 706-3 excludes infringements falling within the scope of the Badinter law.