European Court rules on whether compulsory motor insurance extends to Electrically Assisted Pedal Cycles (EAPC)

On 12 October 2023, the Court of Justice of the European Union (CJEU) delivered its judgment in KBC VERZEKERINGEN NV v P&V VERZEKERINGEN CVBA [C-286/22]

The referral, which came from a Belgian court, concerned whether the compulsory motor insurance regime implemented across the European Union (EU) territory required cover for Electrically Assisted Pedal Cycles (EAPC), which – whilst capable of being driven by a motor – cannot be propelled at all without a rider’s muscular power.

The (current) status of retained EU in the UK*

Whilst, on 28 June 2022, the Motor Vehicles (Compulsory Insurance) Act 2022 entered force in GB and, on 27 April 2022, the Motor Vehicles (Compulsory Insurance) Act (Northern-Ireland) 2022 entered force in Northern Ireland, each Act merely removed from the scope of UK insurance law vehicles (a) not comprising “motor vehicles”, and (b) being used beyond “a road or other public place” – e.g. see s. 156A of the Road Traffic Act 1988 (RTA 1988).

Judgments delivered by the CJEU before IP Completion Day (31 December 2020) – and by the courts in the UK – relating to the compulsory insurance regime in the RTA 1988 were cognisant of (a) European Directives, and (b) decisions of the CJEU. However, their status following the UK’s withdrawal from the EU were now governed by s. 6 of the European Union (Withdrawal) Act 2018 (EUWA 2018) and defined as “retained [EU and domestic] case law” respectively.

In summary, s. 6 of the EUWA 2018 provides that, whilst a domestic court (i.e. one in the UK) is no longer bound by any judgments from the CJEU that are delivered on or after IP Completion Day (and may no longer make referrals to it), domestic courts may continue to have regard to them insofar as they are relevant to any matter before a UK court.

The dispute

The dispute in KBC v P&V arose between two insurers in the context of fatal road traffic accident in 2017. The accident involved a conventional motor vehicle and a vulnerable road user (VRU) riding an EAPC. On the basis the rider was commuting, his employer’s occupational health insurer, P&V, paid compensation to the deceased’s family and subsequently sought to recover those payments, by bringing a subrogated claim, from KBC, the motor vehicle’s insurer. 

However, following a judgment in 2019, the driver was found not to have been responsible for the accident. Nonetheless, under the applicable Belgian law, the vehicle’s insurer was still required to compensate the rider’s family and occupational health insurer on the basis the rider was not the driver of a motor vehicle but a VRU and, therefore, still entitled to compensation on a strict liability basis under Article 29 of the applicable Belgian law.
 
Whilst the definition of “vehicle” within Article 1(1) of the European Directive [2009/103/EC] specified a vehicle as “… any motor vehicle intended for travel on land and propelled by mechanical power, but not running on rails…”, it was arguably unclear whether such vehicles had to be exclusively propelled by mechanical power in order to fall within scope of compulsory cover.

If an EAPC could properly comprise a vehicle, the motor insurer would not be required to reimburse the occupational health insurer, given the absence of negligence on the part of its insured driver. If, however, an EAPC was out of scope of Article 1(1), then the motor insurer would have to repay the health insurer simply by reason of the injured party’s status as a VRU.

The Court’s judgment

The Court held that the definition of “vehicle” within the meaning of within Article 1(1) of the European Directive [2009/103/EC] does not encompass EAPCs for a number of reasons.

Firstly, “motor insurance” was, as a matter of ordinary language, concerned with motor vehicles that are propelled exclusively by mechanical power, e.g., cars, motorcycles or heavy goods vehicles.

Secondly, only the use of vehicles capable of being driven exclusively under their own steam are subject to the requirement that users must be licenced.

Thirdly, given that the objectives pursued by the Directives include (a) ensuring the free movement of vehicles normally based in an EU territory and (b) guaranteeing that accident victims benefit from a similar right to compensation irrespective of where an accident occurs, vehicles that not propelled exclusively by mechanical power are not generally capable of causing comparable levels of third-party injury or damage given conventional motor vehicles travel at much higher speeds.

Accordingly, the Directive does not require that EAPCs must be insured under compulsory motor cover.

Future developments

Whilst mentioned only briefly at [7] of the Court’s judgment, Directive 2009/103 will be amended from 23 December 2023 by Directive 2021/2118. This imminent change in the EU law* would likely have resolved this dispute had it been in force at the time of the accident in this case.

Recital 6 of the amended Directive confirms:

Some motor vehicles are smaller and are therefore less likely to cause significant personal injury or damage to property than others. It would be disproportionate and not future proof to include them in the scope of Directive 2009/103/EC. 

Including them would also undermine the uptake of newer vehicles, such as electric bicycles that are not exclusively propelled by mechanical power, and discourage innovation. 

Furthermore, there is insufficient evidence that such smaller vehicles could cause accidents resulting in injured parties at the same scale as other vehicles, such as cars or trucks. 

In line with the principles of subsidiarity and proportionality, requirements at Union level should, therefore, cover only those vehicles that are defined as such in Directive 2009/103/EC.

Accordingly, a new Article 1(1) shall in future provide:

‘1. “vehicle” means:
(a) any motor vehicle propelled exclusively by mechanical power on land but not running on rails with:
(i) a maximum design speed of more than 25 km/h; or
(ii) a maximum net weight of more than 25 kg and a maximum design speed of more than 14 km/h;
…

[* The amended Directive will, of course, not apply in the UK given that it was agreed by the EU 27 after the expiry of the implementation period relating the UK’s membership. However, the decision in KBC will nevertheless be classified as “retained EU case law” under s. 6 of the EUWA 2018, albeit until only the end of this year. This time-limited status is the effect of the Retained EU Law (Revocation and Reform) Act 2023, which introduces a widespread “sunset” of EU law in the UK and provides that: “anything which, immediately before the end of 2023, is retained EU law by virtue of [the EUWA 2018] is not recognised or available in domestic law at or after that time (and, accordingly, is not to be enforced, allowed or followed).”]

Read the full judgment here.

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