Compulsory motor insurance: passenger interference does not amount to driving, decision of the European Court of Justice on 12 February 2026

During a journey by minibus in 2016 a passenger suddenly, for unknown reasons, applied the vehicle’s handbrake while it was travelling at around 45 mph, causing the driver and another passenger to be thrown from the vehicle. The former was seriously injured and the latter was killed. The driver attempted to argue that his losses should be covered by his own compulsory motor insurance because the passenger’s actions meant that at the time he was, in effect, a third party and no longer the driver.

This novel argument succeeded at first instance in 2020 but was overturned on appeal in December 2022. On a further appeal to the Supreme Court, the issue was referred to the European Court of Justice in these terms:

This is not an English case - as the option to refer matters ended on 31 December 2020 - but one subject to Dutch law. In this article we examine the European Court’s decision of 12 February 2026 in the case (the judgment is available here).

The background in Dutch law

In the Netherlands, the Motor Vehicle Liability Insurance Act (Wegenverkeerswet aansprakelijkheidsverzekering motorvoertuigen, hereinafter “WAM”) implements the core principle of the European Motor Insurance Directive (2009/103) and requires compulsory insurance of third-party liability arising from the use of a motor vehicle.

Art. 3 WAM provides that a WAM policy must cover civil liability arising from the use of the vehicle. This compulsory insurance may only be limited to the extent permitted by the legislation, with one such limitation in art. 4(1) WAM allowing the exclusion of liability for damage suffered by the driver of the vehicle causing the accident.

This exclusion applies only to cases in which the driver, as a claimant, seeks coverage under the WAM policy of the vehicle that caused the accident, without being at fault. It does not apply where the driver is liable for the accident.

In refusing the driver’s claim against the compulsory insurance, the ruling of the Dutch Court of Appeal of 19 December 2022 aligns perfectly with existing WAM jurisprudence. The Court followed this, ruling that the driver does not lose their status as a driver if they temporarily lose control, for example due to interference from a passenger. Accordingly, whether someone should be considered a driver under art. 4(1) WAM does not depend on a temporary loss of control, but on whether they were in fact independently operating the vehicle.

The subsequent reasoning of the European Court aligns with aligns with this approach, and confirms that a driver retains their status, for the purposes of compulsory motor third party liability insurance, even if a passenger temporarily interferes with control of the vehicle.

Another interesting question is whether, on grounds of reasonableness and fairness, it could ever be unacceptable to apply the exclusion to a blameless driver who suffered serious injury. In our opinion, this is not the case. The WAM explicitly allows insurers to include such an exclusion in the policy. Moreover, it has long been possible to take out a Passenger Injury Insurance (Schadeverzekering Inzittenden, hereinafter: “SVI”), under which the driver’s damage would be covered (subject to the policy’s exclusions), even if the driver is liable for the accident. Under these circumstances, we see no reason why the WAM insurer of the vehicle that caused the accident should be responsible for this risk.

The ruling of the European Court means that the driver’s underlying claim cannot be covered under the WAM in the Netherlands. Normally, an SVI policy, if taken out, could provide coverage, but in this case the driver was under the influence of substances and not wearing a seatbelt, which would trigger normal exclusions under an SVI policy. It would seem, therefore, that the driver’s losses could not be claimed under the SVI either. This outcome preserves the rationale of the WAM and illustrates how Dutch law is aligned with the Directive as interpreted by the European Court in this case.

The basis of the latest decision and the English law perspective

The European Court’s decision of 12 February 2026 is also relevant to UK motor insurance, even if it is no longer binding on courts here.

Article 12 of the 2009 Motor Insurance Directive provides that compulsory motor insurance “shall cover liability for personal injuries to all passengers, other than the driver, arising out of the use of a vehicle.” It should, however, be noted that neither “passenger” or “driver” is further defined.

The recent judgment observes that in general provisions of European law are interpreted by considering the wording, the context and the policy objectives of the instrument in which it appears. Where terms are not specifically defined, words should be understood “by reference to their usual meaning in everyday language” in addition to context and purpose. Adopting this approach to interpreting “driver” and “passenger”, the court concluded that “[in] the usual meaning of those terms in everyday language… the term ‘driver’ refers … to the person who is at the wheel or the controls of the vehicle and steers it. The term ‘passenger’ refers to a person who is carried in a vehicle and who is not driving it.”

This is hardly surprising. The aim of the Directive is to require Member States to introduce compulsory insurance not to protect “drivers” but to protect passengers and other non-driver road users. The Court noted that from the 1990s, revisions to the Directive have been “marked by the consistent and explicit exclusion” of damage suffered by drivers.

Actions such as those by the passenger in the instant case could not change the status of either him or the driver. To find otherwise would risk “undermining both the fundamental distinction between driver and third-party victim, which characterises the system of compulsory insurance against civil liability in respect of the use of motor vehicles… and the distinction between the obligation to provide that insurance cover and the extent of compensation for damage.”

The Court thus answered the question referred by Dutch Supreme Court negatively, following the opinion delivered last September by Advocate-General Biondi. He too regarded the passenger’s actions as interfering with, rather than taking over, the driving of the vehicle.

This approach neither excludes the passenger from the status of protected victim under the Directive nor does it deprive the driver from their status as driver.

At a practical level, however, the extent to which the passenger was involved in causing his or her own damage would be a matter for the national applicable law. Had that been English law, concepts such as contributory negligence or the apportionment of causation would apply and offer means by which the court might take account of the blameworthiness of the passenger in setting the level of compensation to be met by the compulsory insurance.