E-8/25 Dommages Areas v Gable Insurance AG in Konkurs
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Deadlines: Motivation ministry: 24 June 2025 Written observations: 6 August 2025
Keywords: insurance claims, statutory subrogation, insolvency proceedings
Subject: Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II): art. 268(1)(g) an art. 275(1).
Facts of the case: Applicant is ‘Dommages Areas’ an insurance company established under French law with a registered office in France. The defendant is ‘Gable Insurance’ a Liechtenstein-registered insurer. The two companies got into a dispute about the insurance of a building that was damaged by a fire, caused during works carried out by ‘Net Etancheite’. Being a construction insurer, Dommages Areas has compensated over 900.000 euros for the fire damage. Net Etancheite was insured by Gable Insurance. Dommages therefore obtained a French judgment ordering Gable to reimburse the money, but Net Etancheite was insolvent. Dommages Areas lodged its recovery as a privileged insurance claim in the insolvency, but the claim was denied.
The question is now asked whether a statutorily subrogated direct-action claim (and its legal costs) must be given priority as an insurance claim under Solvency II.
Request for an advisory opinion: 1. Is an insurance claim within the meaning of Article 268(1)(g) of Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II), OJ 2009 L 335, p. 1, incorporated in the EEA Agreement by Decision of the EEA Joint Committee No 78/2011 of 1 July 2011, LGBI 2012/384, still to be given precedence in accordance with Article 275(1) of that directive even where the claim at issue is the claim of an injured party having a direct right of action against the insurance undertaking which, by way of statutory subrogation, has been subrogated to a fourth party?
2. If the answer to the Question 1 is in the affirmative: Must legal costs incurred in the assertion of an insurance claim be regarded as an insurance claim within the meaning of Article 268(1)(g) of Directive 2009/138/EC and thus also be given precedence in accordance with Article 275(1) of that directive?
Cited (recent) case-law: E-5/20 SMA SA and Société Mutuelle d'Assurance
Policy Area: FIN; JenV
