In Farrell, referring to who was responsible for the
failure to implement the EU Motor Insurance Directive in the wake of a car
accident, the CJEU explained that the conditions set out in the so called in
they have been delegated to perform the task in
the public interest of a Member State and have special powers for this purpose.
According to the CJEU, in Foster “The Court has not attempted to formulate a general test
that would cover all situations in which there could be one entity that could
be invoked by the Directive’s provisions that could have a direct effect”
and that it should be interpret in the light of paragraph 18 of the same judgment, in which
the Court stated that an individual may rely on such provisions for
organizations or bodies subject to the authorities or state control or have
special powers going beyond those which arise from the normal rules applicable
to relations between persons and, consequently, that “the conditions that an organization
must adequately be subject to the authority or control of a State and must have
special rights going beyond those which result from the normal rules applicable
to relations between individuals cannot be connected” 1
By adding a bit more clarity, the CJEU explained that “state
emanations” are important to ensure the direct effect of EU directives after
their transposition period expires.
In conclusion, it should be remembered that Community law provided for
the introduction of compulsory civil liability insurance in relationship
with movement of motor vehicles. Injured third parties benefit from the possibility of direct claims against the liability
insurer, if it is not available to the competent local insurance fund. However, the Community law did not provide for approximation
of the provisions on civil liability with road accidents. In these
circumstances, the question arises whether and which dimension the liability insurance company or the
insurance guarantee fund may appoint against the injured person not only the
lack of liability of the insured, but also the injured person’s behaviour or exclusion
resulting from insurance contracts.
I believe that this is a desirable explanation that can potentially
contribute to increasing the effectiveness of secondary EU law.