Opinion of Advocate General Medina delivered on 16 July 2026

Provisional text

OPINION OF ADVOCATE GENERAL

MEDINA

delivered on 16 July 2026 ( 1 )

Case C ‑ 328/25

Consorcio de Compensación de Seguros

v

Ministerio Fiscal,

MLVM,

LRMG,

LMR,

JMV,

LMMV,

AHM

(Request for a preliminary ruling from the Tribunal Supremo (Supreme Court, Spain)

( Reference for a preliminary ruling – Directive 2009/103/EC – Directive (EU) 2021/2118 – Compulsory insurance against civil liability in respect of the use of motor vehicles – Motor vehicle used to commit a crime against a person – Compensation of the victim – Concept of ‘use of vehicles’ – Concept of ‘accident’ – Compensation scheme )

I. Introduction

1. This request for a preliminary ruling concerns the interpretation 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, ( 2 ) in the light of recital 9 of Directive (EU) 2021/2118 of the European Parliament and of the Council of 24 November 2021 amending Directive 2009/103. ( 3 ) More specifically, this case raises, among other things, the question whether the deliberate use of a motor vehicle as a means of causing personal injury to, or the death of, another person falls within the scope of the concept of ‘use of vehicles’ within the meaning of the first paragraph of Article 3 of Directive 2009/103.

2. In the collective imagination of contemporary Western societies, the motor vehicle is widely regarded as a symbol of freedom. Whether it takes the form of Jack Kerouac’s literary ( On the Road ) or Ridley Scott’s cinematic ( Thelma & Louise ) masterpiece, this symbol has been an almost constant feature of Western culture since the second half of the 20th century. However, long before then, in 1846, in a speech delivered before the Chambre des pairs (Chamber of Peers, France), Victor Hugo had emphasised that, in his view, ‘with freedom comes responsibility’ and that he was ‘among the ranks of those who do not wish freedom to be enjoyed without bearing responsibility’. ( 4 )

3. In a sense, the requirement to insure a vehicle today embodies this very spirit of responsibility. It is, in fact, precisely this spirit that has guided the EU legislature in adopting, since 1972, a series of directives on compulsory insurance against civil liability arising from the use of motor vehicles, ( 5 ) an area that has been the subject of gradual harmonisation in pursuance of the objective of protecting the victims of accidents caused by motor vehicles. ( 6 ) In that context, the Court of Justice has previously ruled, on several occasions, on the interpretation of those directives in order to define, inter alia, the concept of ‘use of vehicles’. ( 7 ) However, the extent of the damage covered by liability insurance is a constant source of questions, such as those at the heart of this case.

4. In the present case, the circumstances that gave rise to doubts regarding the interpretation of the concept of ‘use of vehicles’ are particularly serious, as they relate to the use of a motor vehicle to deliberately cause the death of another person.

II. The dispute in the main proceedings, the questions referred and the procedure before the Court

5. In the morning of 12 July 2020, AHM became involved in a fight with several persons, including AMV, outside a nightclub in Spain. After the fight, AHM, who had never held a driving license, started his car for which he had not taken out compulsory civil liability insurance. He deliberately drove it at high speed, without having switched on the headlights, at AMV, who was walking along the pavement, and hit him. After that first collision, AHM turned the car around and drove over AMV. AMV died later that day as a result of the multiple injuries he had suffered.

6. When the facts in the main proceedings occurred, there were two systems in Spain that could lead to compensation for persons who have suffered damage or injury caused by a motor vehicle, namely a system for compensating damage or injury caused by use of a motor vehicle and a system of public benefits for victims of intentional violent crimes.

7. By judgment of 19 September 2022, supplemented by a subsequent ruling, the Jury Office of the Audiencia Provincial de Barcelona (Provincial Court, Barcelona, Spain) sentenced AHM to 16 years and 8 months’ imprisonment for being the perpetrator of premeditated murder, and to 4 months’ imprisonment for being the perpetrator criminally responsible for a crime against traffic safety. In addition, the Audiencia Provincial de Barcelona (Provincial Court, Barcelona) ordered him to pay costs and compensation. The Consorcio de Compensación de Seguros (Insurance Compensation Consortium; ‘the Consortium’) was also ordered, as a party with direct, joint and several civil liability, to pay compensation, without prejudice to its right of recourse.

8. The Consortium lodged an appeal before the Civil and Criminal Chamber of the Tribunal Superior de Justicia de Cataluña (High Court of Justice, Catalonia, Spain) which, by judgment of 7 March 2023, upheld the judgment handed down at first instance, however the amount of compensation payable by the Consortium and the number of beneficiaries were slightly reduced; in particular, the Consortium was exempted from paying compensation to the victim’s grandparents.

9. The Consortium lodged an appeal before the Tribunal Supremo (Supreme Court, Spain), which is the referring court, seeking to have the judgment of 7 March 2023 set aside on the ground, in particular, that the subject matter of the main proceedings does not concern the ‘use of a vehicle’. That argument is based on Article 1(6) of Real Decreto Legislativo 8/2004, de 29 de octubre, por el que se aprueba el texto refundido de la Ley sobre responsabilidad civil y seguro en la circulación de vehículos a motor (Legislative Royal Decree 8/2004 of 29 October 2004 approving the revised text of the Law on civil liability and insurance in respect of the use of motor vehicles), in the version applicable to the dispute in the main proceedings, which provides that ‘use of a vehicle shall exclude use of the motor vehicle as an instrument for committing intentional offences against persons or property’.

10. The referring court has doubts as to the compatibility of that Spanish law with EU law having regard, in particular, to the wording of recital 9 of Directive 2021/2118, from which it is apparent, in essence, that Member States should either ensure that damage or injury caused intentionally by means of a motor vehicle is covered in accordance with Directive 2009/103, or provide for an alternative equivalent compensation scheme that ensures that such damage or injury is compensated in a manner as closely as possible resembling the compensation arrangements provided for in that directive. However, the referring court observes that Directive 2021/2118 does not apply ratione temporis to the facts at issue in the main proceedings. In that context, the referring court asks whether the initial version of Directive 2009/103 already provided for the principle of equivalent compensation for damage and injury referred to in recital 9 of Directive 2021/2118. If so, that court seeks to ascertain whether the Spanish State’s scheme for compensation for damage resulting from offences committed intentionally by means of a motor vehicle can be regarded as providing for compensation arrangements ‘as close as possible’ to those laid down in Directive 2009/103.

11. In those circumstances, the Tribunal Supremo (Supreme Court) decided to stay the proceedings and, by decision received at the Registry of the Court of Justice on 13 May 2025, to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does the principle of equivalence of compensation cover for all those who are victims as a result of the use of a motor vehicle, including victims of an intentional assault using the moving vehicle, a principle that was expressly proclaimed in recital 9 of [Directive 2021/2118], constitute effective EU law from the initial version of Directive [2009/103]?

(2) If the answer to the first question is in the affirmative, can a system of compensation operated by the State, which includes victims of intentional offences committed using a motor vehicle, but which reduces the amount of compensation (sometimes by more than half) and excludes some beneficiaries, be considered close to the compulsory insurance system, and therefore takes away the need to include those victims in the coverage provided for in [Directive 2009/103]?’

12. Written observations were submitted to the Court by one of the civil parties (LRMG), the Ministerio Fiscal (Public Prosecutor’s Office, Spain), the Spanish Government and the European Commission. All of those parties attended the hearing that was held on 21 May 2026.

III. Analysis

A. Preliminary remarks

13. As I have indicated in point 3 of this Opinion, Directive 2009/103 merged five previous directives, now repealed, into one in order to consolidate and clarify the current state of the law relating to insurance against civil liability in respect of the use of motor vehicles. However, that directive did not amend the substance of the previous directives, with the result that the case-law relating to those earlier directives can be applied to the interpretation of the equivalent provisions of Directive 2009/103. ( 8 ) In that context, in 2017 the Commission carried out an evaluation of the functioning of Directive 2009/103 which concluded that a number of amendments were necessary in order to improve that directive’s efficiency, effectiveness and coherence with other EU policies. Directive 2021/2118 was adopted for that purpose. ( 9 )

14. In the present case, it is precisely the sequence of those various directives and, more particularly, the relevance of recital 9 that was introduced in Directive 2021/2118 – the terms of which I shall describe in more detail below – that have given rise to the questions referred.

15. The underlying concern is that of compensation for the victims of such damage or injury, bearing in mind that Directive 2009/103 provides, first, in Article 3 thereof, that each Member State must take appropriate measures to ensure that civil liability in respect of the use of a vehicle normally based in its territory is covered by insurance, ( 10 ) and, second, in Article 10 thereof, that, as a measure of last resort, a body must be established to provide compensation to victims in cases in which the vehicle that caused the injury or damage cannot be identified or has not satisfied the requirement for insurance referred to in Article 3 of that directive, that is to say, a vehicle in respect of which no insurance contract is in place. ( 11 )

16. However, Directive 2009/103, in the version applicable to the facts in the main proceedings, does not contain any provision expressly governing the issue of damage or injury caused intentionally by means of motor vehicles.

17. At the same time, Directive 2021/2118, which requires Member States to adopt the measures necessary to comply with that directive by 23 December 2023, states, in recital 9, that where a Member State excludes personal injury or damage to property, caused deliberately by the use of a vehicle, from compulsory motor insurance, it should be allowed to continue that legal practice on one condition. Accordingly, in order not to ‘reduce the protection granted by [Directive 2009/103], such legal practices should be allowed only if a Member State ensures that in such cases the injured parties are compensated for such damage [or injury] in a manner that is as close as possible to how they would be compensated under [Directive 2009/103]’.

18. It thus follows from a literal reading of that recital that the legislature considers it necessary for the principle of equivalence between (i) compensation for damage or injury caused intentionally and (ii) compensation for damage or injury caused unintentionally, both by the use of a vehicle, to be observed, since damage or injury deliberately caused by the use of a vehicle can only be excluded from compulsory motor insurance if the injured parties are compensated in a manner that is ‘as close as possible’ to the compensation that would be granted under Directive 2009/103. Recital 9 also makes clear that such a mechanism must be ensured in order ‘not to reduce the protection granted by [Directive 2009/103]’, which seems to imply that such protection already existed under that directive.

19. Those considerations raise questions regarding two issues.

20. First, the principle of equivalence described in point 18 of this Opinion is only mentioned in recital 9 of Directive 2021/2118, but does not appear in any of the articles of that directive. According to the Court’s settled case-law, a recital of an EU act does not have binding legal force, even though it has an important interpretative value in that it is capable of explaining the content of a provision of the act in question and of clarifying the intention of the author of that act. ( 12 ) Therefore, although it is apparent from the wording of recital 9 that Member States are expected to ensure that compensation for damage or injury caused intentionally by the use of a vehicle is to be as close as possible to compensation for damage or injury caused unintentionally, that recital cannot, on its own, impose such a direct obligation on the Member States.

21. Second, it is not disputed that Directive 2021/2118 did not apply at the time of the tragic events that took place on 12 July 2020. In that context, and apart from the considerations set out in point 20 of this Opinion, the question arises as to whether recital 9 of that directive is relevant for the purpose of interpreting Directive 2009/103 and, if so, what its impact is on the case in the main proceedings. However, in the light of the description of the factual background provided by the referring court and of the wording of the questions referred, it is clear that that court is not seeking to ascertain whether Directive 2021/2118 is applicable in the main proceedings, but only whether the principle of equivalence referred to in point 18 of this Opinion could already be inferred from Directive 2009/103, which is applicable in the context of the dispute in question.

22. It is in the light of the foregoing considerations that both questions referred must be examined.

B. The first question referred

23. By its first question, the referring court seeks, in essence, to ascertain whether Articles 3 and 10 of Directive 2009/103, read in the light of recital 9 of Directive 2021/2118, must be interpreted as meaning that damage or injury caused intentionally using a vehicle for which the insurance obligation has not been fulfilled must be compensated under the former directive. In other words, the question to be answered is therefore whether the scope of Directive 2009/103 extends to damage or injury caused intentionally by a person using a motor vehicle.

1. The delimitation of the scope of Article 3 of Directive 2009/103 by means of the concept of ‘use of vehicle s ’

24. The scope of Directive 2009/103 is not clearly defined in any of the articles of that directive. It has therefore been the subject of an extensive line of case-law of the Court which can be summarised broadly as follows: Directive 2009/103 lays down an insurance obligation in respect of vehicles that are used in a way that is consistent with their normal function. ( 13 ) That involves determining, first, whether the object causing the damage or injury in question can be regarded as a vehicle ( 14 ) and, second, what is meant by the term ‘use of vehicles’. The present dispute concerns that second condition and, more precisely, the use of such a vehicle for the purpose of intentionally committing murder.

25. Therefore, in order to provide a useful answer to the question referred, it is necessary to examine whether such use falls within the scope of the concept of ‘use of vehicles’, within the meaning of the first paragraph of Article 3 of that directive. It is a fundamental matter, as only those cases of use of an insured vehicle which fall within the concept of ‘use of vehicles’ may give rise to the insurer being responsible, under a mandatory contract of insurance against civil liability in respect of the use of that vehicle, for the damage or injuries caused by the latter. ( 15 )

26. Such a preliminary analysis predetermines the broader understanding of the scope of Directive 2009/103, as the same reasoning necessarily applies to the scope of Article 10 of that directive guaranteeing compensation for damage and injuries caused by uninsured or unidentified vehicles. In that regard, I observe, in the light of recital 14 of Directive 2009/103, that Article 10 thereof is intended to guarantee, by the establishment of a body for that purpose, that victims will not be left without compensation if the vehicle which caused the accident is uninsured or unidentified. In parallel, recital 2 of Directive 2009/103, which helps understand the context of Article 3 thereof, emphasises the importance of insurance against civil liability in respect of the use of motor vehicles for policyholders and victims of an accident. Both recitals use the same terms to describe the scope of Directive 2009/103, which is intended to cover liability for victims of accidents. Consequently, Article 3 and Article 10 of Directive 2009/103 both relate to the coverage of the same type of events, namely accidents that have caused injury to the victims, while being complementary regarding the existence or the detectability of policyholders.

27. The Court has already stated that the concept of ‘use of vehicles’, as laid down in the first paragraph of Article 3 of Directive 2009/103, cannot be left to the assessment of each Member State but is an autonomous concept of EU law, which it is for the Court to interpret. ( 16 ) It covers any use of a motor vehicle that is consistent with the normal function of that vehicle, ( 17 ) which ultimately means any use as a means of transport. ( 18 ) As I previously recalled in my Opinion in KBC Verzekeringen, ( 19 ) the Court has gradually clarified the relevant test to be applied in order to determine whether a specific situation falls within the scope of use of a vehicle as a means of transport.

28. To summarise, that test involves a factual assessment of the use of the vehicle in question by taking into account a number of criteria developed by the Court’s case-law.

29. First, the scope of that concept should not be limited to road use (travel on public roads), but should cover any use consistent with the normal function of a vehicle. ( 20 ) Second, the fact that a vehicle is moving or stationary or whether its engine is running or not, at the time when the event giving rise to the damage or injury in question occurs, is not by itself conclusive, as the question which arises is only whether it was used as a means of transport or not. ( 21 ) Third, the actual use of a vehicle as a means of transport must be understood broadly. It includes, among other things, the use which allows persons to get in or out of a vehicle, or which allows goods which are to be transported to be loaded onto or unloaded from a vehicle. ( 22 ) It also includes the ‘natural and necessary steps which form an integral part of the use of that vehicle as a means of transport’, such as its parking and period of immobilisation. ( 23 ) The use falls outside the scope of that concept only when a vehicle is used for a purpose that is clearly distinct from its normal transportation function. ( 24 )

30. In the light of the foregoing, I note that the relevant case-law is characterised by a pragmatic approach ( 25 ) which has been followed with a view to providing national courts with useful guidance for the uniform implementation of the requirements laid down in Directive 2009/103. Although it might appear to be a case-by-case approach, it is nevertheless clear that it is an objective assessment centred on the vehicle itself, the latter being the uniting element of the Court’s case-law defining the concept of ‘use of vehicles’. Thus, to date, that approach has always had a purely functional focus which has led to a broad interpretation of that concept. However, to my knowledge, the Court has never considered the subjective element of the conduct of the driver of a vehicle which led to the damage or injuries caused by that vehicle.

31. Therefore, the present case raises the particular question of whether – and if so, how – the legal characterisation of the subjective element of a driver’s conduct affects the scope of Directive 2009/103. In order to answer the question referred, it is therefore necessary to clarify whether the scope of the concept of ‘use of vehicles’ includes the assessment of that subjective element, namely the driver’s mental state in relation to the objective elements of the criminal offence, more specifically the consequences of the use of the vehicle in question.

2. The relevance of the driver’s ‘ mental state ’ in the definition of t he c oncept of ‘ use of vehicles ’

32. In the present case, in addition to the elements relevant to the objective assessment of the use of the vehicle, the Court is asked to provide clarification as to whether the mental state of the driver of the vehicle which caused the damage or injury in question is relevant for the purposes of determining whether a given situation amounts to ‘use’ of that vehicle within the meaning of the first paragraph of Article 3 of Directive 2009/103. More specifically, and as already mentioned in point 1 of this Opinion, the question to be answered by the Court is whether the mental state of a person when using a motor vehicle as a means of causing the very damage or injury giving rise to the victim’s right to compensation should be taken into account when deciding whether the damage or injury in question falls within the scope of Directive 2009/103. In order to provide an answer, I will apply the Court’s methods of interpretation with regard to the wording of Article 3 and Article 10 of Directive 2009/103 in order to expand on the analysis already carried out by the Court in its case-law regarding the usual meaning of the concept of ‘use of vehicles’, while also taking into account the context in which that concept occurs and the purposes of which it forms part. ( 26 )

(a) The wording of the first paragraph of Article 3 and Article 10 (1) of Directive 2009 /103

33. As regards the first paragraph of Article 3 of Directive 2009/103, the Court has already pointed out that it is worded in very general terms. ( 27 ) More specifically, a literal interpretation of the term ‘use of vehicles’ does not allow any conclusions to be drawn, one way or the other, as to the weight to be attached to the driver’s mental state when determining whether or not an action constitutes such ‘use’.

34. Similarly, Article 10(1) of that directive is silent on the question whether damage or injury caused by an unidentified vehicle, or a vehicle for which the insurance obligation provided for in Article 3 has not been satisfied, is subject to compensation provided by the body which Member States are required to set up or authorise, if that damage or injury results from a deliberate act of the driver of a motor vehicle.

35. Therefore, it does not follow from a literal interpretation of the first paragraph of Article 3 and Article 10(1) of Directive 2009/103 that the EU legislature clearly and explicitly intended to provide cover, by means of compulsory civil liability insurance or by public funding, for damage or injury suffered by a victim of a deliberate act of the driver of a motor vehicle. However, nor does it follow from the same literal interpretation that the legislature intended not to provide such cover. In those circumstances, particular importance must be attached to the context of and the objectives pursued by Directive 2009/103.

(b) The context of Directive 2009/103

36. As regards the context in which the first paragraph of Article 3 and Article 10(1) of Directive 2009/103 form part, it must be noted that insurance against civil liability in respect of the use of motor vehicles is, in that directive, consistently used in conjunction with the concept of ‘accident’, even though that concept is not mentioned in either of those provisions.

37. In that regard, reference should be made to several recitals of that directive. In particular, recital 2 setting out the directive’s key objective states that ‘insurance against civil liability in respect of the use of motor vehicles (motor insurance) is of special importance for European citizens, whether they are policyholders or victims of an accident.’ Recital 18, which sets out the legislature’s considerations concerning the body referred to in Article 10 of the directive, states that ‘in the case of an accident caused by an uninsured vehicle, the body which compensates victims of accidents caused by uninsured or unidentified vehicles is better placed than the victim to bring an action against the party liable.’ In addition, recital 20, describing the reasons behind the harmonisation of victims’ rights to compensation under Directive 2009/103, states that ‘motor vehicle accident victims should be guaranteed comparable treatment irrespective of where in the Community accidents occur.’

38. Furthermore, it follows from the third subparagraph of Article 10(3) of Directive 2009/103 that ‘the conditions in which personal injuries are to be regarded as significant shall be determined in accordance with the legislation or administrative provisions of the Member State in which the accident takes place.’ Moreover, the procedural arrangements for compensation for damage or injury caused by a motor vehicle are set out in Chapter 7, entitled ‘Settlement of claims arising from any accident caused by a vehicle covered by insurance as referred to in Article 3’. ( 28 )

39. It follows from the various provisions and recitals which I have just examined that the context of the first paragraph of Article 3 and Article 10(1) cannot be properly understood if the link between the concept of ‘use of vehicles’ and the concept of ‘accident’ is disregarded.

40. The travaux préparatoires that led to the adoption of Directive 2021/2118 further confirm that Directive 2009/103 is aimed at the victims of accidents. In that regard, the Commission’s proposal provides, inter alia, a useful indication by stating that Directive 2009/103 ‘seeks to accomplish a high degree of convergence in terms of protection of potential victims of motor vehicle accidents’ and that ‘the first EU Directive on motor insurance … was adopted in 1972, with the dual objectives of protecting victims of motor vehicle accidents’. ( 29 )

41. The Court itself has repeatedly emphasised that ‘the objective of protecting the victims of accidents caused by vehicles’ guided the development of EU legislation on compulsory insurance. ( 30 )

42. In the light of the considerations set out in points 36 to 41 of this Opinion, the conclusion that must necessarily be drawn is that the concept of ‘use of vehicles’ and, consequently, the extent of the liability for damage and injuries covered by Articles 3 and 10 of Directive 2009/103 relate to accidents. Therefore, the determination of the scope of that directive rests on the cumulative combination of the concepts of ‘use of vehicles’ and ‘accident’. In those circumstances, the question arises as to whether damage or injury caused deliberately by a driver of a motor vehicle can be regarded as such an ‘accident’.

43. Directive 2009/103 does not contain any definition of the term ‘accident’, ( 31 ) which has been recognised as being a notion that is difficult to define. ( 32 ) However, an accident usually refers to an adverse, unintentional and unforeseen event. ( 33 ) In that regard, the Court has already stated that the ordinary meaning to be given to that concept is that of an unforeseen, harmful and involuntary event, ( 34 ) or of ‘an unforeseen and sudden occurrence which causes damage or hazards, such as injuries or death’. ( 35 )

44. As far as national legal systems are concerned, recital 9 of Directive 2021/2118 indicates that there are different national approaches to applying that concept, and that when it comes to road traffic and civil liability, some Member States have chosen to exclude deliberate acts from the definition of an accident. ( 36 ) This observation is, moreover, consistent with the harmonisation approach that underpins Directive 2009/103, which lays down an unconditional obligation to ensure that civil liability in respect of the use of vehicles is covered by insurance, as well as the exceptions to that obligation, while leaving Member States a margin of discretion when implementing further requirements of that directive aimed to ensure effectiveness of that civil liability coverage. ( 37 )

45. Thus, it appears that the interpretation of the term ‘accident’ – whether in its ordinary sense or as understood in legal literature – does not support the view that a situation in which damage or injury has been caused deliberately by the driver of a motor vehicle to a third party constitutes such an accident.

46. This would mean that that situation does not fall within the concept of ‘use of vehicles’ within the meaning of the first paragraph of Article 3 of Directive 2009/103. That approach is not without difficulties, since it might be questioned whether the scope of Directive 2009/103 – and consequently the extent of the protection it confers on persons injured by motor vehicles – can be narrowed only in the light of a contextual interpretation of that directive which intrinsically links the use of a vehicle with an accident. In other words, and assuming that the legislature is playing its role of ‘rational actor’, ( 38 ) it might be queried as to what extent it is possible to interpret the intention of the legislature in defining the concept of ‘use of vehicles’ as being limited to damage or injury caused unintentionally or recklessly, without making it explicit.

47. Admittedly, those observations do create confusion when interpreting the legislature’s policy choices pursued by that legislation. On the one hand, recital 9 of Directive 2021/2118 explicitly states that in certain situations the use of vehicles as a means of deliberately causing damage or personal injury should be covered by compensation in accordance with Directive 2009/103. On the other hand, that statement appears to be contrary to the wording and context of Directive 2009/103 which, for the reasons set out in point 42 of this Opinion, should be interpreted as meaning that only damage or injury caused by an accident is covered by compensation under that directive. That criticism must, however, be viewed in the light of the fact that the recitals of an EU instrument have no independent binding legal force. ( 39 )

48. Those difficulties regarding the literal and contextual interpretations of the concept of ‘use of vehicles’ means that there is a particular need to examine that concept in the light of the objectives pursued by Directive 2009/103. ( 40 )

3. The objectives of Directive 2009/103

49. A distinction must be drawn between the objectives of Directive 2009/103 and the purpose of national legal schemes governing mandatory motor vehicle insurance. The directive pursues its own specific objectives, ( 41 ) which comprise, in particular, promoting freedom of movement and services. Such a concern is not necessarily, or indeed at all, central to the concerns of national laws, the main purpose of which may, for example, be to determine the rights and duties of an insurer liable to pay compensation for the damage or injury in question. ( 42 ) The protection of victims is, however, relevant to both EU and national measures.

50. I observe, first, that Directive 2009/103 is founded on Article 95(1) EC (now Article 114(1) TFEU), which confers power on the European Parliament and the Council of the European Union to adopt measures for the approximation of the provisions which have as their object the establishment and functioning of the internal market. That directive does not refer to the provisions of the Treaties which aim to facilitate judicial cooperation in criminal matters with a cross-border dimension or, in particular, to Article 82(2) TFEU, unlike, for example, Directive 2012/29/EU, which seeks to increase the level of protection of victims, in particular within the framework of criminal proceedings. ( 43 )

51. The purpose of Article 114 TFEU is to ensure the achievement of the objectives set out in Article 26 TFEU, which seeks to establish the functioning of the internal market, being an area without internal borders in which the free movement of persons, goods, services and capital is ensured. In that regard, a legislative act adopted on the basis of Article 114 TFEU must, first, comprise measures for the approximation of the provisions laid down by law, regulation or administrative action in the Member States and, second, have as its object the establishment and functioning of that internal market. ( 44 ) By contrast, victims of crime fall under Title V of the FEU Treaty, which establishes the competence of the European Union to legislate in the area of freedom, security and justice based on respect for fundamental rights and the different legal systems and traditions of the Member States. There is thus a clear distinction between the objectives pursued by the FEU Treaty with respect to measures that promote the internal market and those that aim to prevent and combat crime. Those differences must not be ignored.

52. Second, I would like to point out that Directive 2009/103 does not include any legal provisions suggesting that it was intended to protect victims of intentional crimes committed while using a motor vehicle. To be more precise, none of the articles in that legislative act state that the legislature intended to compensate such victims in a manner ‘as close as possible’ to the compensation payable to victims of accidents under Articles 3 and 10 of that directive. Consequently, it appears that Directive 2009/103 is rooted in the logic of the internal market rather than in the logic of criminal matters, which fall within a different framework, a field in which the legislature has decided to rely on other instruments.

53. In view of the foregoing, I consider that, despite the ambiguities attributable both to the wording of the provisions concerned and their context in Directive 2009/103, and to the confusing methods adopted by the legislature to define and explain its scope, the most consistent interpretation, in the light of the scope of Articles 82 and 114 of the FEU Treaty respectively, is that the concept of ‘use of vehicles’ cannot include damage or injury caused deliberately by means of a motor vehicle. In that respect, I believe that, irrespective of its content, recital 9 of Directive 2021/2118 is not capable of reversing that assessment, given that the content of that recital is not explicitly embodied in the articles forming the main body of that directive. It follows from settled case-law of the Court that only the provisions of the legislative act and not its recitals ( 45 ) are the means by which the EU legislature exercises its competence to legislate and, more specifically, to harmonise the rules on, inter alia, compensation to victims who have suffered damage or injury by a motor vehicle. Since the concept of ‘use of vehicles’ is intrinsically linked to the concept of ‘accident’, as demonstrated above, the compensation for damage or injury caused to victims is not covered by Directive 2009/103 if the mental state of the perpetrator reflects a deliberate intention to cause damage or injury to the victim, and that is a matter that remains within the competence of the Member States.

4. Application to the present c ase

54. It is the sole responsibility of the referring court to carry out an overall assessment of all the relevant facts and legal issues in order to resolve the dispute in the main proceedings. However, there is nothing to prevent the Court from giving an answer of use to the referring court by providing the latter with the guidance on the interpretation of EU law that would be necessary for that court to rule itself on that dispute. In that regard, the methodology described in points 23 to 31 of this Opinion should be applied to determine whether circumstances such as those in the main proceedings are likely to be classified as a matter falling within the scope of ‘use of vehicles’. As I mentioned in points 27 to 30 of this Opinion, that assessment must determine whether the vehicle concerned was being used in a manner consistent with its normal function when it caused the damage or injury in question. It follows further, from points 32 to 53 of this Opinion, that the establishment of the driver’s mental state regarding the damage or injury caused is relevant for the purpose of determining whether an act that led to this harm or injury falls within the scope of Directive 2009/103, as only damage or injury caused by an accident (unintentional mental state regarding the consequences) is covered by the provisions of that directive.

55. When considering the methodology as summarised in the preceding point, it is true that the circumstances of the main proceedings could give rise to confusion. Thus, it is apparent from the file before the Court and the hearing that the vehicle in question – with the driver and a passenger on board – was used to travel on a public road in order to reach, and then flee, the scene of the tragic event which resulted in the death of a person. However, it is equally clear that the act, which gave rise to the damage or injury at issue in the main proceedings, consisted of the deliberate use of that vehicle specifically for the purpose of causing that damage or injury. ( 46 ) It follows from the order for reference that a court judgment established that AHM had deliberately driven his uninsured vehicle, at high speed and without having switched on the headlights, in order to violently hit AMV twice. The referring court explains that AHM had the intention of ending AMV’s life or that there was a high possibility of him doing so as the result of his actions.

56. In those circumstances, and subject to the verification to be carried out by the referring court, the use made of the vehicle in the present case cannot be regarded as falling within the concept of ‘use of vehicles’ within the meaning of the first paragraph of Article 3 and, consequently, of Article 10(1) of Directive 2009/103. Therefore, any compensation for that damage and injury cannot be derived from the cover provided for therein, if it is clearly established that the driver’s mental state was such that he carried out a deliberate act to cause the harm in question, namely the death of a person. ( 47 )

57. Any other approach would, in my view, confer on a recital a binding force that would be in clear contradiction with the Court’s established case-law concerning the role of recitals in interpreting provisions of EU law. ( 48 )

58. In the light of all the foregoing considerations, I propose that the Court should answer the first question referred as follows: Article 3(1) and Article 10(1) of Directive 2009/103, read in the light of recital 9 of Directive 2021/2118, must be interpreted as not imposing on a Member State an obligation to compensate damage or injury caused using a motor vehicle, in a manner that is as close as possible to how they would be compensated under Directive 2009/103, if it is established that the driver’s mental state reflects a deliberate intention to cause the harm in question, such as the death of a person. However, the Member States remain free to do so.

C. The second question referred

59. By the second question, the referring court asks, in essence, about the conditions under which a compensation scheme for damage or injury committed intentionally using a motor vehicle can be regarded as compensating the injured parties in a manner that is as close as possible to how they would be compensated under Directive 2009/103.

60. For the reasons set out in the preceding section, I consider that there is no need to answer that question. However, should the Court depart from that view and find, in essence, that Directive 2009/103 – in the version applicable to the facts in the main proceedings – implicitly provides that damage or injury caused deliberately by a driver of a vehicle, for which the insurance obligation has not been satisfied, should be compensated in accordance with the requirements of Article 10 of that directive, or in a manner that is as close as possible to the latter, I will address that issue briefly for the sake of completeness.

61. The Court has consistently held that the obligation to provide insurance cover against civil liability for damage or injury caused to third parties by motor vehicles is distinct from the extent of the compensation to be afforded to them on the basis of general civil liability. Whereas the former is defined and guaranteed by EU legislation, the latter is, essentially, governed by national law. ( 49 ) Consequently, as EU law currently stands, the Member States remain, in principle, free to determine, in particular, what damage or injury caused by motor vehicles must be compensated, the extent of the right to compensation and the persons who must be entitled to compensation. That freedom is however restricted by that directive, inasmuch as it renders the cover of certain types of damage or injury mandatory, specifying minimum amounts of cover determined by that directive. ‘Personal injuries’, as set out in the last subparagraph of Article 3 of Directive 2009/103, feature among the types of damage or injury in respect of which cover is mandatory. ( 50 )

62. In that context and having regard to the significant prerogatives that remain within the competence of the Member States in this area, compensation as close as possible to that provided for by Directive 2009/103 must, in particular, comply with the minimum amounts laid down by that directive and cover the types of damage or injury specified therein, including non-material damage. Furthermore, as regards the persons who are entitled to compensation for such non-material damage under Directive 2009/103, the Member States are required to ensure that compensation payable, under their national civil liability law, for non-material harm suffered by the next of kin of victims of road traffic accidents is covered by compulsory insurance of at least the minimum amounts laid down in Directive 2009/103. ( 51 ) The same considerations apply in the case of an uninsured vehicle, since the scope of both Article 3 and Article 10 of that directive necessarily leads to the same result for the victim concerned.

63. It is, however, for the referring court to verify all those factors.

64. In the light of all the foregoing considerations, and should the Court consider that it is necessary, I propose that the Court should answer the second question referred as follows: a compensation scheme for damage or injury committed intentionally by means of a motor vehicle may be regarded as compensating the injured parties in a manner that is as close as possible to how they would be compensated under Directive 2009/103 if it complies with the minimum amounts laid down by that directive and covers the types of damage specified therein, including non-material harm suffered by the next of kin of victims of road traffic accidents.

IV. Conclusion

65. In the light of all the foregoing considerations, I propose that the Court should answer the questions referred by the Tribunal Supremo (Supreme Court, Spain) as follows:

(1) Article 3(1) and Article 10(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, read in the light of recital 9 of Directive (EU) 2021/2118 of the European Parliament and of the Council of 24 November 2021 amending Directive 2009/103,

must be interpreted as not imposing on a Member State an obligation to compensate damage or injury caused by a motor vehicle, in a manner that is as close as possible to how they would be compensated under Directive 2009/103, if it is established that the driver’s mental state reflects a deliberate intention to cause the harm in question, such as the death of a person. However, the Member States remain free to do so.

(2) A compensation scheme for damage or injury committed intentionally by means of a motor vehicle may be regarded as compensating the injured parties in a manner that is as close as possible to how they would be compensated under Directive 2009/103 if it complies with the minimum amounts laid down by that directive and covers the types of damage specified therein, including non-material harm suffered by the next of kin of victims of road traffic accidents.

1 Original language: English.

2 OJ 2009 L 263, p. 11.

3 OJ 2021 L 430, p. 1.

4 Hugo, V., Actes et paroles , p. 554.

5 See, in that regard, Opinion of Advocate General Biondi in Stichting Koskea (C‑490/24, EU:C:2025:735, point 2 and, in particular, footnote 3).

6 See, to that effect, judgment of 28 November 2017, Rodrigues de Andrade (C‑514/16, EU:C:2017:908, paragraph 33 and the case-law cited).

7 See, in that regard, Opinion of Advocate General Biondi in Stichting Koskea (C‑490/24, EU:C:2025:735, point 2 and, in particular, footnote 5).

8 See, to that effect, judgment of 10 June 2021, Van Ameyde España (C‑923/19, EU:C:2021:475, paragraph 23 and the case-law cited).

9 See, to that effect, recital 2 of Directive 2021/2118.

10 See, to that effect, judgment of 4 September 2018, Juliana (C‑80/17, EU:C:2018:661, paragraphs 36 and 37 and the case-law cited).

11 See, to that effect, judgment of 19 September 2024, Matmut (C‑236/23, EU:C:2024:761, paragraph 48 and the case-law cited).

12 See, to that effect, judgment of 5 March 2024, Kočner v Europol (C‑755/21 P, EU:C:2024:202, paragraph 59 and the case-law cited).

13 See, to that effect, judgment of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146, paragraph 56).

14 See, to that effect, judgment of 4 September 2014, Vnuk (C‑162/13, EU:C:2014:2146, paragraphs 37 to 40); that condition is not at issue in the main proceedings, since it is undisputed that the car which caused the tragic incident at the heart of the case must be regarded as a vehicle within the meaning of that directive.

15 See, to that effect, order of 29 October 2021, Ubezpieczeniowy Fundusz Gwarancyjny (C‑688/20, EU:C:2021:897, paragraph 28 and the case-law cited).

16 See, to that effect, judgment of 28 November 2017, Rodrigues de Andrade (C‑514/16, EU:C:2017:908, paragraph 31 and the case-law cited).

17 Judgment of 20 June 2019, Línea Directa Aseguradora (C‑100/18, EU:C:2019:517, paragraph 35 and the case-law cited).

18 Judgment of 28 November 2017, Rodrigues de Andrade (C‑514/16, EU:C:2017:908, paragraph 38).

19 See Opinion of Advocate General Medina in KBC Verzekeringen (C‑323/25, EU:C:2026:572, points 32 to 52).

20 Judgment of 20 June 2019, Línea Directa Aseguradora (C‑100/18, EU:C:2019:517, paragraph 35 and the case-law cited).

21 Judgment of 28 November 2017, Rodrigues de Andrade (C‑514/16, EU:C:2017:908, paragraph 39).

22 Judgment of 15 November 2018, BTA Baltic Insurance Company (C‑648/17, EU:C:2018:917, paragraph 36).

23 Judgment of 20 June 2019, Línea Directa Aseguradora (C‑100/18, EU:C:2019:517, paragraph 41).

24 For example, an agricultural tractor which, at the time of the accident in question, was only used to generate the motive power necessary to drive the pump of a herbicide sprayer, was not considered to be a means of transport as such (judgment of 28 November 2017, Rodrigues de Andrade , C‑514/16, EU:C:2017:908, paragraph 41).

25 This approach has been subject to criticism; on that point, see, for example, Opinion of Advocate General Bobek in Van Ameyde España (C‑923/19, EU:C:2021:125).

26 See, to that effect, judgment of 12 February 2026, Stichting Koskea (C‑490/24, EU:C:2026:89, paragraph 24 and the case-law cited).

27 Judgment of 4 September 2018, Juliana (C‑80/17, EU:C:2018:661, paragraph 36 and the case-law cited).

28 The term ‘accident’ appears in Articles 1, 2, 5, 6, 8, 10, 12, 13, 15 and 17 to 25 of Directive 2009/103.

29 Proposal for a Directive of the European Parliament and of the Council amending Directive 2009/103/EC of the European Parliament and 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 ensure against such liability (COM(2018) 336 final), of 24 May 2018.

30 Judgment of 19 September 2024, Matmut (C‑236/23, EU:C:2024:761, paragraph 31 and the case-law cited).

31 On that point, see, for example, Opinion of Advocate General Mengozzi in Vnuk (C‑162/13, EU:C:2014:106, point 32).

32 See, in that regard, Bakouche, D., ‘L’accident: responsabilité civile et assurances’, Responsabilité civile et assurances , July-August 2014, p. 5.

33 See Cornu, G., Vocabulaire juridique , PUF, Paris, 2024 .

34 Judgment of 19 December 2019, Niki Luftfahrt (C‑532/18, EU:C:2019:1127, paragraph 35).

35 Judgment of 17 December 2020, CLCV and Others (Defeat device on diesel engines) (C‑693/18, EU:C:2020:1040, paragraph 108).

36 For example, it has been emphasised in the context of the French legal order that ‘etymologically speaking ( accidens : something that happens by chance), the term “accident” refers to an event that occurs unexpectedly – by surprise, as it were – a sudden and unintended event. An accident therefore corresponds, at first glance, to a sudden event resulting in unintended damage. That means that if the damage was caused deliberately, it is no longer, strictly speaking, an accident. From that perspective, the case-law excludes from the classification of an event as an ‘accident’ the situation where the driver or custodian of the vehicle involved, or even a third party, is guilty of intentional or, at the very least, willful misconduct’ (Leduc, F., ‘Le cœur et la raison en droit des accidents de la circulation’, Responsabilité civile et assurances , March 2009).

37 For example, Article 9 of Directive 2009/103 provides that the insurance referred to in Article 3 is to be compulsory at least in respect of some minimum amounts defined in that article, which are without prejudice to any higher guarantees which Member States may prescribe. Moreover, the Court has consistently pointed out that the extent of the compensation to be afforded on the basis of the civil liability of the insured person is, essentially, governed by national law (judgment of 17 March 2011, Carvalho Ferreira Santos , C‑484/09, EU:C:2011:158, paragraph 31 and the case-law cited). In addition, with respect to Article 10 of Directive 2009/103 and the bodies responsible for compensation laid down by that article, the Member States remain competent to regard compensation by those bodies as subsidiary or non-subsidiary.

38 Lenaerts, K. and Gutiérrez-Fons, J.A., ‘To say what the law of the EU is: Methods of interpretation and the European Court of Justice’, Columbia Journal of European Law , Vol. 20, No 2, 2014, p. 20.

39 See points 19 to 21 of this Opinion.

40 It should be recalled in that respect that ‘where the EU law provision in question is ambiguous, obscure or incomplete, all the methods of interpretation employed by the ECJ operate in a mutually reinforcing manner’ (Lenaerts, K. and Gutiérrez-Fons, J.A., footnote 38, op. cit., p. 61).

41 Judgment of 28 November 2017, Rodrigues de Andrade (C‑514/16, EU:C:2017:908, paragraph 33 and the case-law cited).

42 Hocquet-Berg, S., ‘La notion d’accident de la circulation’, Responsabilité civile et assurances , July-August 2014, p. 34.

43 Directive of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA (OJ 2012 L 315, p. 57). On this subject, I observe that Directive 2009/103 lays down detailed requirements regarding the minimum amounts covered by compulsory insurance, which is not the case with regard to Directive 2012/29. In that connection, Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims (OJ 2004 L 261, p. 15) is concerned with compensation for the injuries suffered by victims of crime and the national compensation schemes that must be implemented in that regard, but it is essentially about ensuring the free movement of natural persons and their protection in case of harm suffered in another Member State.

44 See, in that regard, Opinion of Advocate General Kokott in Philip Morris Brands and Others (C‑547/14, EU:C:2015:853, point 55 and the case-law cited).

45 See, to that effect, judgment of 5 March 2024, Kočner v Europol (C‑755/21 P, EU:C:2024:202, paragraph 59 and the case-law cited), mentioned above in this Opinion. On that subject, Advocate General Szpunar stressed, in his Opinion in Joined Cases X and Visser (C‑360/15 and C‑31/16, EU:C:2017:397, point 132), that ‘in the EU legal order they are descriptive and not prescriptive in nature.’ See, also, den Heijer, M., van Os van den Abeelen, T. and Maslyka, A., ‘On the use and misuse of recitals in European Union law’, Amsterdam Law School Legal Studies Research Paper No. 2019-31 , Amsterdam Center for International Law, Amsterdam, 2019.

46 It is apparent from the order for reference that AHM was sentenced, as the perpetrator of premeditated murder, to 16 years and 8 months’ imprisonment and, as the perpetrator responsible for a crime against traffic safety, to 4 months’ imprisonment.

47 See, in that respect, the deliberately exaggerated example given by Advocate General Bobek in footnote 20 to his Opinion in Ubezpieczeniowy Fundusz Gwarancyjny z siedzibą (C‑383/19, EU:C:2020:1003).

48 See point 44 of this Opinion.

49 Judgment of 12 February 2026, Stichting Koskea (C‑490/24, EU:C:2026:89, paragraph 35 and the case-law cited).

50 Judgment of 15 December 2022, HUK-COBURG-Allgemeine Versicherung (C‑577/21, EU:C:2022:992, paragraphs 37 and 38 and the case-law cited).

51 Judgment of 15 December 2022, HUK-COBURG-Allgemeine Versicherung (C‑577/21, EU:C:2022:992, paragraphs 40 to 42 and the case-law cited).