Motor third party liability insurance, the passenger who made a false declaration to the company must also be compensated

However, it remained to be seen whether the particular seriousness of the case (false declarations in the pre-contractual phase) could change the terms of the question and allow the company to refuse compensation by invoking the nullity of the contract. The response of the EU Court was once again negative and tended to favour the right to compensation of the victim of the accident, even when a 'unfaithful' contracting party. For the judges, the only cases of legitimate refusal of compensation would concern:

- cases of dominant driving, when the passenger got into the vehicle that caused the damage knowing that it was stolen;

- cases where the injured party engages in abusive conduct aimed at obtaining unfair insurance advantages.

None of these circumstances would appear in the present case. Neither would abuse: the subjective element would be lacking, since the passenger/driver made false statements not for personal gain but in the interest of the owner/driver.

This reasoning leaves some perplexity, also because of the consequences that the EU Court draws with regard to the insurer's recourse. This recourse allows the insurer to recover from the insured what has been paid to the injured party without being able to invoke the invalidity of the policy or the contractual clauses delimiting coverage. Here the panel excludes the possibility of obtaining, by way of recourse from the injured party, not even if he is a policyholder, the reimbursement of the "entirety" of the sums paid to him by way of compensation, on pain of the nullification of the protection that he is entitled to as an injured party.

An obvious conclusion in most cases: an action for recourse naturally presupposes that the insured (who suffers it) is a different party from the injured party.

It is not entirely clear, however, what happens when the two figures exceptionally coincide, as in the case where the driver is different from the owner and the latter has suffered personal injury (article 129 of the CP) due to an accident. Here the rule of non-assertion of exceptions and consequent recourse would seem to be ruled out, with the possibility for the insurance company to assert frontally any contractual defects or coverage limits and reject the claim.

The case of the unfaithful policyholder, who is not also the owner/insured, is different; he is not entitled to compensation and, as we have seen, retains his right to compensation in full and intact - according to the EU Court -: even if the contract is declared invalid as a result of his false declarations, the compensation cannot obviously concern him, but must instead be directed against the insured/owner, who may be completely blameless and uninvolved in the conclusion of the contract. Such a solution does not seem to meet the standards of fairness.

It should also be noted that the judgment prohibits the recovery of the entirety of the sums paid by way of compensation by the insurer, which leaves open the question of the admissibility of a 'partial' recovery.

Finally, it should be noted that the European Court of Justice does not take a position on the possibility of pactually introducing a right of recourse against the unfaithful, when not injured, contractor.