Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 11 December 2019 (1)

Case C‑667/18

Orde van Vlaamse Balies,

Ordre des barreaux francophones et germanophone

v

Ministerraad

(Request for a preliminary ruling from the Grondwettelijk Hof (Constitutional Court, Belgium))

(Reference for a preliminary ruling — Directive 2009/138/EC — Legal expenses insurance — Freedom of the insured person to choose a lawyer or representative — Inquiry or proceedings — Definition — Judicial or extrajudicial mediation)

I.      Introduction

1.        The request for a preliminary ruling concerns the interpretation of Article 201(1)(a) 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). (2)

2.        This request has been made in the context of an action for annulment brought by the Orde van Vlaamse Balies and the Ordre des barreaux francophones et germanophone (‘the bar associations’) seeking the annulment of the wet tot wijziging van de wet van 4 april 2014 betreffende de verzekeringen en ertoe strekkende de vrije keuze van een advocaat of iedere andere persoon die krachtens de op de procedure toepasselijke wet de vereiste kwalificaties heeft om zijn belangen te verdedigen in elke fase van de rechtspleging te waarborgen in het kader van een rechtsbijstandsverzekeringsovereenkomst (Law amending the Law of 4 April 2014 on insurance, seeking to ensure the free choice of a lawyer or any other person who, under the law applicable to the procedure, has the necessary qualifications to defend his interests at every judicial stage in the context of a legal expenses insurance contract) (3) of 9 April 2017.

3.        The action brought by the bar associations concerns the extension, by the Belgian legislature, to arbitration proceedings but not to mediation proceedings, of the freedom for the holder of legal expenses insurance to choose a lawyer or a representative.

4.        By the question referred, the Grondwettelijk Hof (Constitutional Court, Belgium) seeks to ascertain whether mediation proceedings, be they judicial or extrajudicial, provided for by Belgian law, fall under the term ‘proceedings’ within the meaning of Article 201(1)(a) of Directive 2009/138.

5.        At the end of my analysis, I will propose that the Court answer that question in the affirmative. I will first recall that Article 201(1)(a) of Directive 2009/138, which concerns the insured person’s free choice of a lawyer, is independent from Article 198(1) of that directive, which provides for cover for the resulting costs. I will then identify from the case-law of the Court on the rights of a holder of legal expenses insurance and, in particular, the case-law regarding the term ‘inquiry’, the points that may be of assistance in interpreting the term ‘proceedings’. Finally, I will draw conclusions from those points, taking into consideration the characteristics of mediation, in accordance with the objectives pursued by the directive.

II.    Legal framework

A.      EU law

1.      Directive 87/344/EEC repealed

6.        Council Directive 87/344/EEC of 22 June 1987 on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance, (4) which was repealed by Directive 2009/138, (5) provided, in Article 4(1)(a):

‘1.      Any contract of legal expenses insurance shall expressly recognise that:

(a)      where recourse is had to a lawyer or other person appropriately qualified according to national law in order to defend, represent or serve the interests of the insured person in any inquiry or proceedings, that insured person shall be free to choose such lawyer or other person.’

2.      Directive 2009/138

7.        Recital 16 of Directive 2009/138 provides:

‘The main objective of insurance and reinsurance regulation and supervision is the adequate protection of policy holders and beneficiaries. The term beneficiary is intended to cover any natural or legal person who is entitled to a right under an insurance contract. Financial stability and fair and stable markets are other objectives of insurance and reinsurance regulation and supervision which should also be taken into account but should not undermine the main objective.’

8.        Title II of that directive, entitled ‘Specific provisions for insurance and reinsurance’, includes Chapter II, concerning ‘provisions specific to non-life insurance’, Section 4 of which, entitled ‘Legal expenses insurance’, contains Articles 198 to 205. (6)

9.        Article 198 of that directive, entitled ‘Scope of this Section’, provides, in paragraph 1:

‘This Section shall apply to legal expenses insurance referred to in class 17 in Part A of Annex I whereby an insurance undertaking promises, against the payment of a premium, to bear the costs of legal proceedings and to provide other services directly linked to insurance cover, in particular with a view to the following:

…

(b)      defending or representing the insured person in civil, criminal, administrative or other proceedings or in respect of any claim made against that person.’

10.      Article 200(1) and (4) of Directive 2009/138 provides:

‘1.      The home Member State shall ensure that insurance undertakings adopt, in accordance with the option chosen by the Member State, or at their own choice, where the Member State so agrees, at least one of the methods for the management of claims set out in paragraphs 2, 3 and 4.

Whichever solution is adopted, the interest of persons having legal expenses cover shall be regarded as safeguarded in an equivalent manner under this Section.

…

4.      The contract shall provide that the insured persons may instruct a lawyer of their choice or, to the extent that national law so permits, any other appropriately qualified person, from the moment that those insured persons have a claim under that contract.’

11.      Article 201 of that directive, entitled ‘Free choice of lawyer’, provides, in paragraph 1(a):

‘1.      Any contract of legal expenses insurance shall expressly provide that:

(a)      where recourse is had to a lawyer or other person appropriately qualified according to national law in order to defend, represent or serve the interests of the insured person in any inquiry or proceedings, that insured person shall be free to choose such lawyer or other person.’

B.      Belgian law

1.      The Law on insurance before the entry into force of the Law of 9 April 2017

12.      Prior to the entry into force of the Law of 9 April 2017, Article 156(1) of the wet betreffende de verzekeringen (Law on insurance) (7) of 4 April 2014, was worded as follows:

‘Any insurance contract relating to legal expenses shall explicitly provide at least that:

1°      when it is necessary to proceed to judicial or administrative proceedings, the insured person can freely choose a lawyer or any other person who, under the law applicable to the proceedings, has the necessary qualifications to defend, represent or serve his interests.’

2.      The Law of 9 April 2017

13.      Article 2 of the Law of 9 April 2017 provides:

‘In Article 156 of the Law … on insurance, paragraph 1 shall be replaced by the following:

“1°      the insured person shall be free to choose, when it is necessary to proceed to judicial, administrative or arbitration proceedings, a lawyer or any other person who, under the law applicable to the proceedings, has the necessary qualifications to defend, represent or serve his interests and, in the case of arbitration, mediation or any other recognised non-judicial method for settling disputes, a person who has the necessary qualifications and is appointed for that purpose”.’

3.      The Judicial Code

14.      It is apparent from the documents in the case file that the Gerechtelijk Wetboek (Judicial Code), as last amended by the wet houdende diverse bepalingen inzake burgerlijk recht en bepalingen met het oog op de bevordering van alternatieve vormen van geschillenoplossing (Law containing various civil law provisions and provisions with a view to promoting alternative ways of settling disputes) (8) of 18 June 2018, provides for two forms of mediation, extrajudicial or judicial, the former being governed by Articles 1730 to 1733 of that code and the latter by Articles 1734 to 1737. The general principles are set out in Articles 1723/1 to 1729 of the Judicial Code.

(a)    The general principles

15.      In accordance with Article 1723/1 of the Judicial Code:

‘Mediation is a confidential and structured process of voluntary conciliation between parties in dispute which is carried out with the assistance of an independent third party, who is neutral and impartial, who facilitates communication and tries to guide the parties to develop a solution themselves.’

16.      Article 1729 of the Judicial Code provides:

‘Either party may, at any time, terminate the mediation without this being detrimental to it.’

(b)    Extrajudicial mediation

17.      Article 1730(1) of the Judicial Code provides:

‘Any party may propose to the other parties, independently of any judicial or arbitration proceedings, before, during or after the conduct of judicial proceedings, that they take the matter to mediation. The parties shall appoint the mediator by mutual consent or entrust that appointment to a third party.’

18.      Under Article 1731(1) and (3) of the Judicial Code:

‘§ 1.      The parties shall establish between themselves, with the assistance of the mediator, the detailed rules for how the mediation will be organised and the length of the process. That agreement shall be documented in a mediation protocol which is signed by the parties and the mediator. The mediation costs and fees shall be borne by the parties in equal shares, unless they decide otherwise.

…

§ 3.      The signing of the protocol shall suspend the limitation period for the course of the mediation.’

19.      Article 1732 of that code provides:

‘If the parties reach an agreement in mediation, this shall be put into writing, dated and signed by the parties and the mediator. Where appropriate, the mediator’s accreditation shall be mentioned.

That written document shall contain the precise commitments made by each party.’

20.      Article 1733 of the Judicial Code provides:

‘Where an agreement is reached, and if the mediator who has conducted the mediation is accredited by the commission mentioned in Article 1727 [of the Judicial Code], the parties or one of the parties may submit the mediation agreement obtained in accordance with Articles 1731 and 1732 [of that code] to the court having jurisdiction for approval. …

The court may refuse to approve the agreement only if it is contrary to public policy or if the agreement reached at the end of family mediation is contrary to the interests of minor children.

The approval order has the same effect as a judgment, within the meaning of Article 1043 [of that code]. [(9)]’

21.      According to the referring court, if the mediator who has conducted the mediation is not accredited by the Federal Mediation Commission, the mediation agreement cannot be approved and its enforceability must be established in another way, such as, for example, by a notarial act.

(c)    Judicial mediation

22.      Article 1734 of the Judicial Code provides:

‘§ 1.      Except before the Hof van Cassatie [Court of Cassation, Belgium] and the arrondissementsrechtbank [District Court, Belgium], at any stage of the proceedings and also in interim proceedings, the court seised to settle a dispute may, at the joint request of the parties or on its own initiative, order a mediation, as long as the pleadings have not ended.

…

§ 2.      The decision ordering that the parties try to resolve the dispute by mediation … shall mention the name and position of the accredited mediator or mediators and shall determine the duration of the mediation, which may not exceed six months, and set the case at the earliest possible date after the expiry of that time limit.

§ 3.      At the latest at the hearing referred to in § 2, the parties shall inform the court of the outcome of the mediation. If they have not been able to reach an agreement, they may, by mutual agreement, request a new time limit or ask that the proceedings be continued.

…

§ 5.      Where the parties jointly request that a mediation be ordered, the procedural time limits imposed on them shall be suspended as from the date on which they make that request.

If necessary, the parties or one of them may request new time limits in order for the case to be prepared for the hearing referred to in § 2 or in Article 1735(5).’

23.      Under Article 1735(2) and (3) of the Judicial Code:

‘§ 2.      The mediation may concern the whole or part of the dispute.

§ 3.      The court shall remain seised of the dispute for the course of the mediation and may, at any time, take any measures it deems necessary. It may also, at the request of the mediator or one of the parties, terminate the mediation before the expiry of the period prescribed.’

24.      Article 1736 of the Judicial Code provides:

‘…

When his duties come to an end, the mediator shall inform the court in writing whether or not the parties were able to reach an agreement.

If the mediation has led to the conclusion of a mediation agreement, even if only partial, the parties or one of them may, in accordance with Article 1043 [of the Judicial Code], request that it be approved by the court.

The court may refuse to approve the agreement only if it is contrary to public policy or if the agreement reached at the end of family mediation is contrary to the interests of minor children.

If the mediation has not led to the conclusion of a full mediation agreement, the proceedings shall continue on the date set, without prejudice to the court’s power, if it considers it appropriate and with the agreement of all parties, to extend the mediator’s term of office for a period which it shall specify.’

III. The main proceedings and the question referred for a preliminary ruling

25.      On 23 October 2017, the bar associations brought an action for annulment of the Law of 9 April 2017 before the Grondwettelijk Hof (Constitutional Court). In support of their action, they raise two pleas in law, the first alleging infringement of Articles 10 and 11 of the Grondwet (Constitution), which enshrine the principles of equality and non-discrimination, read in conjunction with Article 201 of Directive 2009/138.

26.      Those applicants submit that the Law of 9 April 2017, which does not stipulate that the holder of legal expenses insurance has the freedom to choose his own lawyer in the context of mediation proceedings, is contrary to Article 201 of Directive 2009/138. They state that it may be inferred from the case-law of the Court on the concept of an ‘inquiry or proceedings’ contained in that article that the term ‘proceedings’ must not be interpreted restrictively. They also submit that, on several accounts, both voluntary and judicial mediation may be regarded as a part of the proceedings, within the meaning of Article 201 of Directive 2009/138.

27.      The referring court reiterates that the Law of 9 April 2017 at issue extended the freedom of the holder of legal expenses insurance to choose a lawyer or another qualified person, which had previously been provided in respect of any inquiry or proceedings, to arbitration proceedings but not to mediation proceedings. That choice made by the Belgian legislature is based on two considerations. First, the presence of counsel is not likely to favour mediation and, secondly, mediation is not necessarily based on legal reasoning, unlike arbitration.

28.      The referring court considers that it follows from the case-law of the Court (10) that the term ‘proceedings’, within the meaning of Article 201 of Directive 2009/138, must be interpreted broadly and that it can be inferred from paragraph 19 of the judgment in Büyüktipi that a distinction must not be made, including in the case of ‘proceedings’, between the preparatory stage and the decision-making stage of such proceedings.

29.      However, that case-law does not make it possible to determine with certainty whether that right also applies in mediation proceedings. In that regard, the referring court states that mediation proceedings have the characteristics of both an amicable settlement of the dispute and of legal proceedings. In particular, since the aim of mediation proceedings is to lead the parties to reach a mediation agreement between themselves, those proceedings differ from legal proceedings and are similar to an amicable settlement of the dispute. However, according to the referring court, mediation proceedings must be distinguished from an amicable settlement of the dispute in so far as they generally follow from an amicable consultation, they are regulated by the Judicial Code and an agreement concluded at the end of mediation proceedings conducted by an accredited mediator can be approved by the competent court whereby the approval order has the same effect as a judgment.

30.      As a result of the doubts on the part of the Grondwettelijk Hof (Constitutional Court) as to the interpretation of Article 201(1)(a) of Directive 2009/138, raised by all of those factors, that court decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Should the term “proceedings” in Article 201(1)(a) of Directive [2009/138] be interpreted as including extrajudicial and judicial mediation proceedings, as provided for in Articles 1723/1 to 1737 of the [Judicial Code]?’

31.      Written observations were submitted by the bar associations, the Belgian Government and the European Commission. Those parties presented oral argument at the hearing on 2 October 2019.

IV.    Analysis

32.      By its question, the Grondwettelijk Hof (Constitutional Court) invites the Court to clarify the meaning and scope of the term ‘proceedings’ contained in Article 201(1)(a) of Directive 2009/138 by asking, in essence, whether that provision must be interpreted as meaning that it precludes national legislation from refusing to allow the holder of legal expenses insurance the free choice of a lawyer or representative in the event of judicial or extrajudicial mediation.

33.      The principle of the freedom of the insured person, who has taken out legal expenses insurance, to choose the lawyer or any other person who is authorised to defend his interests ‘in any inquiry or proceedings’, set out in Article 201(1)(a) of Directive 2009/138, is not new.

34.      It was expressed in similar terms in Article 4(1)(a) of Directive 87/344, which was repealed by Directive 2009/138, Directive 2009/138 having recast various directives on insurance, including Directive 87/344. (11) Consequently, reference must be had to the Court’s interpretation of that article.

35.      Therefore, I propose to set out in detail the lessons that can be drawn from the Court’s case-law, and the consequences which, in my view, arise from that case-law with respect to the interpretation of the term ‘proceedings’ and to mediation.

36.      However, before doing that, because of exchanges during the hearing with regard to the relationship between the applicable provisions on legal expenses insurance, it think it would be useful to present, succinctly, how they are organised, which is illustrated most clearly in Directive 2009/138.

A.      The applicable provisions on legal expenses insurance

37.      Within Directive 2009/138, the applicable provisions on legal expenses insurance are grouped in a specific section which contains Articles 198 to 205.

38.      That section contains the three articles, namely Articles 198, 200 and 201 of Directive 2009/138, which are relevant for the Court’s analysis, which correspond, in essence, to Articles 2 to 4 of Directive 87/344. (12)

39.      By adding titles, the EU legislature clarified the purpose of those provisions and highlighted their autonomy. (13) Thus, Article 198 of Directive 2009/138 defines legal expenses insurance and its scope, whereas Article 200 concerns the management of claims by insurance undertakings and Article 201 determines the cases in which the insured person is free to choose a lawyer.

40.      Therefore, the logic pursued by the provisions of Article 198 of Directive 2009/138, which concerns the obligations on the insurance undertaking, namely ‘to bear the costs of legal proceedings and to provide other services directly linked to insurance cover, in particular with a view to … defending or representing the insured person in civil, criminal, administrative or other proceedings or in respect of any claim made against that person’ (14) must be distinguished from that pursued by Article 200 of that directive, which defines the three methods for the management of claims from persons with legal expenses cover, including the method set out in paragraph 4, which consists in providing in a contract that ‘the insured persons may instruct a lawyer of their choice or, to the extent that national law so permits, any other appropriately qualified person, from the moment that those insured persons have a claim under that contract’. (15)

41.      The specific purpose of Article 201(1)(a) of Directive 2009/138, which sets out the rights of insured persons or ‘specific guarantees in favour of insured persons’ (16) in respect of the free choice of a lawyer or representative must also be distinguished from the other provisions contained in the section concerning legal expenses insurance.

42.      Consequently, there is no doubt, in my view, that the only effect produced by Article 198(1) of Directive 2009/138 is to provide cover for the costs resulting from the free choice of lawyer, laid down in Article 201(1)(a) of that directive, among the benefits payable by the insurer (17) within the limits laid down in paragraph 2. That article is not intended to determine the conditions under which the insured person is able to choose a lawyer or a representative.

43.      Similarly, it cannot be inferred from the specific purpose of Article 201(1)(a) of Directive 2009/138 that that provision merely sets out the principle of the free choice of lawyer without providing cover by the insurer for the costs, which goes without saying. It is the bearing of costs provided for in Article 198(1) of that directive that justifies the intervention by the EU legislature with respect to the conditions under which a holder of legal expenses insurance may choose a lawyer or representative.

44.      Moreover, it may be noted that, when the Court clarified the scope of the rights conferred on the insured person by Article 4 of Directive 87/344, now Article 201 of Directive 2009/138, it did not consider it necessary to interpret Article 2 of Directive 87/344, now Article 198 of Directive 2009/138. (18)

45.      Since the relationship between Article 198(1)(b) and Article 201(1)(a) of Directive 2009/138 has been clarified, I shall continue my analysis by investigating which elements of the Court’s case-law are useful when considering the conditions for implementing the insured person’s free choice of lawyer.

B.      The lessons to be drawn from the Court’s case-law on the insured person’s free choice of lawyer

46.      The Court has given a ruling on the scope of the insured person’s rights deriving from Article 4(1)(a) of Directive 87/344, now Article 201(1)(a) of Directive 2009/138, in cases in which the insured person had sought to exercise his rights either in court proceedings or before administrative bodies. That case-law serves as guidance for interpreting Article 201(1)(a) of Directive 2009/138. (19)

1.      If the insured person exercises his rights in court proceedings

47.      In its judgment in Eschig, (20) the Court, in the first place, identified three principles which form the foundations of the case-law on legal expenses insurance, now governed by Directive 2009/138.

48.      First, the objective of Directive 87/344 and, in particular, Article 4 thereof, is to protect in a broad manner the interests of insured persons. (21) Secondly, Article 4(1) has general application and is obligatory in nature. (22) Thirdly, Directive 87/344 does not seek to completely harmonise the rules applicable to the Member States’ legal expenses insurance contracts, with the result that, as EU law currently stands, the Member States remain free to determine the body of rules applicable to those contracts, on condition that they exercise their powers in this field in compliance with EU law and, in particular, Article 4 of Directive 87/344. (23)

49.      In the second place, the Court emphasised that the right of the insured person to choose ‘his representative’ is ‘restricted to legal and administrative procedures’ (24) and that this is the ‘minimum level of freedom which must be granted to the insured person whatever the option provided for in Article 3(2) of [Directive 87/344] with which the insurance undertaking complies’. (25) The Court specified that ‘the solution provided for in Article 3(2)(c) of Directive 87/344 grants more extensive rights to insured persons than Article 4(1)(a) of that directive. Thus, the latter provision provides for the right to freely choose a representative only where an inquiry or proceedings are initiated. By contrast, according to the solution provided for in Article 3(2)(c) of that directive, the insured person has the right to entrust the defence of his interests to a representative from the moment that he has the right to claim from his insurer under the insurance policy, therefore prior to any legal or administrative procedure’. (26)

50.      In two subsequent judgments of 26 May 2011, Stark, (27) and of 7 November 2013, Sneller, (28) the Court reiterated the principles set out in the judgment in Eschig in order to conclude, in the first judgment, that the insured person may face geographical restrictions on his choice of lawyer, provided that his freedom to choose is not rendered meaningless, (29) and, in the second judgment, that that freedom cannot be restricted to situations in which the insurer decides that recourse should be had to a lawyer external to the insurance undertaking. (30)

51.      Thus, in the first three judgments, the Court gave a ruling on the scope of the insured person’s rights in the context of court proceedings without having to interpret the terms ‘proceedings’ or ‘inquiry’. (31)

52.      In two subsequent judgments, delivered on 7 April 2016, in Massar and in Büyüktipi, the Court interpreted the term ‘inquiry’ within the meaning of Article 4(1)(a) of Directive 87/344, now Article 201(1)(a) of Directive 2009/138.

2.      If the insured person exercises his rights before an administrative body

53.      In the case which gave rise to the judgment in Massar, the request for a preliminary ruling sought to determine whether the principle of the free choice of lawyer or representative could apply where the holder of legal expenses insurance wished to defend himself during the examination by an independent public body of the request, made by his employer, for his dismissal to be authorised, since that procedure was not before a court. (32)

54.      In the case which gave rise to the judgment in Büyüktipi, the same question was raised in respect of a holder of legal expenses insurance who wished to file a complaint against a centre, entrusted by law to monitor exceptional medical expenses, following the refusal by that centre of his request for authorisation of care. In that second case, the procedure was also not before a court.

55.      However, a significant difference between those two cases must be pointed out at the outset. While in the case which gave rise to the judgment in Büyüktipi an action could have been brought before an administrative court with jurisdiction in matters relating to social security and the civil service (33) against the administrative decision, that was not the case in the procedure at issue in the case which gave rise to the judgment in Massar. No appeal could be brought, or an objection made, against the administrative decision. Only an action for damages could have been brought before a civil court. (34)

56.      The Court ruled that Article 4(1)(a) of Directive 87/344 must be interpreted as meaning that the term ‘inquiry’ referred to in that provision includes, in respect of the judgment in Massar, ‘a procedure at the end of which a public body authorises an employer to dismiss an employee who is covered by legal expenses insurance’ (35) and, in respect of the judgment in Büyüktipi, ‘the stage of an objection before a public body during which that body gives a decision against which an action may be brought before the courts’. (36)

57.      It is in the light of those decisions, and, in particular, their grounds, that, in the case in the main proceedings, the Grondwettelijk Hof (Constitutional Court) considers that the term ‘proceedings’ may be interpreted as meaning that mediation falls within the scope of Article 201(1)(a) of Directive 2009/138.

58.      However, since the term ‘proceedings’ must be interpreted in accordance with the Court’s usual method, I consider that the analysis of the scope of the judgments in Massar and in Büyüktipi is merely ancillary to the Court’s usual methods for interpreting a provision of EU law.

C.      The term ‘proceedings’ within the meaning of Article 201(1)(a) of Directive 2009/138

59.      According to the settled case-law of the Court, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part. (37)

60.      In the present case, contextual information must in my view be taken from the judgments in Massar and in Büyüktipi.

1.      The wording of Article 201(1)(a) of Directive 2009/138

61.      It should be recalled, with regard to the wording of Article 4(1)(a) of Directive 87/344, that the Court has held that it ‘follows … that the term “inquiry” must be read in opposition to the term “proceedings”’. (38) That finding must be extended to Article 201(1)(a) of Directive 2009/138, which is worded identically in that regard.

62.      The only difference in wording in the French-language version (39) in respect of those concepts of ‘proceedings’, which concerns the determiner (‘toute procedure’ is replaced by ‘une procedure’), does not in itself have any impact in my view. (40) Moreover, the Court has used the expression ‘in the context’ of an or any inquiry or proceedings by referring to the 11th recital of Directive 87/344. (41)

63.      In the French-language version, the expression ‘procédure judiciaire ou administrative’ appears only in Article 201(1)(a) of that directive, with regard to the insured person’s choice of lawyer. Article 198 of Directive 2009/138, which is identical to Article 2 of Directive 87/344 and which contains, in the French version, the expression ‘procedure judiciaire’, is drafted differently.

64.      Although the latter provision states that the insurer is obliged to bear the costs of legal proceedings (‘frais de procédure judiciaire’), this is defined very broadly in the French version, as can be seen from the following wording: ‘notamment en vue … de défendre ou de représenter l’assuré dans une procédure civile, pénale, administrative’,  followed by  ‘ou autre’. (42)

65.      This difference in the wording of the two provisions can also be seen in its various language versions. By way of illustration, in the English-language version of Article 198 of Directive 2009/138, the expressions ‘legal proceedings’ and ‘defending or representing the insured person in civil, criminal, administrative or other proceedings’ are used, whereas, in Article 201(1)(a) of that directive, ‘dans une procédure judiciaire ou administrative’ is translated as ‘in any inquiry or proceedings’.

66.      Similarly, in the German-language version, Article 198 of Directive 2009/138 uses the expressions ‘die Kosten des Gerichtsverfahrens’ and ‘den Versicherten in einem Zivil-, Straf-, Verwaltungs- oder anderen Verfahren’ and Article 201(1)(a) uses ‘in einem Gerichts- oder Verwaltungsverfahren’.

67.      I infer from examining the documents on the drafting of Directive 87/344, which I have been able to consult, that the lack of harmonisation in the wording is not the result of a specific intention on the part of the EU legislature. Neither the Proposal for a Council Directive on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance (43) nor the other preparatory acts (44) contain any explanations in that regard. It can only be noted, with regard to the origin of Article 4 of Directive 87/344, that, first, in the Commission’s explanatory memorandum, it is argued, in essence, that ‘under legal expenses insurance contracts, the costs and fees of the lawyer responsible for defending the interests of the insured person are borne by the insurer. It is inadvisable that this lawyer should be the usual lawyer of the insurance company, above all if it is a composite company. This would place the lawyer concerned in a difficult position. Thus, the Directive lays down that the insured person must be free to choose his own lawyer’. Secondly, the Economic and Social Committee had asked that ‘it be expressly stated on what terms a lawyer may be instructed’ but it had not proposed a drafting amendment specifying the type of proceedings. (45)

68.      It was only in the report from the ad hoc Working Party of Counsellors to the Permanent Representatives Committee, dated 26 May 1987, on the amended proposal for a Council Directive on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance (46) that it was explained that ‘the minimum level of freedom in the free choice of a lawyer is defined by reference to the relevant enquiries or proceedings’, without giving further details with regard to the choice of different wording in Article 2 of Directive 87/344 and in particular the scope of the terms ‘in particular’ and ‘or other’ used in that provision.

69.      That legislative history, in my view, confirms that the term ‘proceedings’ may be interpreted broadly, as the Court has already held in the judgments in Massar and in Büyüktipi in respect of the term ‘inquiry’. The Court held that that term cannot be limited to legal proceedings in administrative matters only, that is to say, those that take place before a court in the strict sense, (47) and that the text of Article 4(1) of Directive 87/344 does not contain any distinction between the preparatory stage and the decision-making stage in an inquiry or proceedings. (48)

70.      I shall therefore turn to analysing the scope of those judgments, which is decisive for the purposes of interpreting Article 201(1)(a) of Directive 2009/138, as the referring court has noted.

2.      The scope of the judgments in Massar and in Büyüktipi

71.      If the grounds of those judgments are followed to the letter, it must be inferred from them that the term ‘proceedings’ within the meaning of Article 201(1)(a) of Directive 2009/138 is autonomous and includes a stage which precedes a judicial stage, which may be an extension of it.

72.      Consequently, in my view, it could be inferred from this at the outset that mediation falls under that term, (49) as it is a method of settling disputes.

73.      Therefore, I do not share the view that the scope of the judgments in Massar and in Büyüktipi must be limited to the specific circumstances which formed the basis of those judgments, which would result in an organic criterion relating to the power of the authorities to take decisions which affect the rights of a holder of legal expenses insurance being applied. The term ‘proceedings’ would therefore cover only procedures which end with a court giving a final judgment on the legal position of the person concerned.

74.      I note, in the first place, that, if such an analysis were accepted, this would exclude mediation in administrative matters (50) from the scope of Article 201(1)(a) of Directive 2009/138, which, in my view, would be contrary to the Court’s interpretation resulting from the judgments in Massar and in Büyüktipi.

75.      In the second place, I observe that the Court did not limit its interpretation by using an organic criterion, since it confirmed the need to protect, broadly, the interests of insured persons (51) and it applied that principle in specific cases whose differences must be pointed out.

76.      As the Court noted in the judgment in Büyüktipi, the ‘procedure … constitute[d] the indispensable preliminary stage for the bringing of an action before the administrative court’, (52) without specifying whether it was obligatory or not, whereas, in the judgment in Massar, no appeal could be brought against the administrative decision. At most, it could serve as a basis for proceedings for the purposes of obtaining compensation for damage before the civil courts. (53)

77.      Moreover, in that judgment, the Court gave a ruling with regard to an administrative procedure granting authorisation to dismiss, requested by the employer, (54) during which the employee concerned does not raise any objection. He is merely heard (55) and cannot bring any form of appeal. This is significantly different from the case which gave rise to the judgment in Büyüktipi.

78.      This comparative analysis of the judgments in Massar and in Büyüktipi, in my view, enables the key criteria used by the Court to be established. Whilst there is the need to protect the interests of the insured person whose rights are affected, (56) according to the wording of those judgments, this must be either in a ‘stage’, (57) or in a ‘procedure’ (58) which may be linked to a subsequent judicial stage.

79.      No condition that the assistance must be provided by a lawyer or that there must be a preliminary stage is established.

80.      In other words, the Court reached the same conclusion in circumstances which also concerned the desire of a holder of legal expenses insurance to obtain an administrative decision in his favour before a court decides on a possible challenge, which is not limited to a review as to whether the administrative decision is well founded.

81.      I infer from this that the term ‘proceedings’ now covers not only the appeal stage ‘before a court in the strict sense’, (59) that is to say, the judicial stage as soon as proceedings are underway or in the process of being brought, but also a stage that precedes those proceedings, or, in other words, an extrajudicial stage. (60)

82.      Such an interpretation has the effect of aligning the various language versions of the French expression ‘procédure judiciaire ou administrative’ with the general meaning of the term ‘inquiry’, contained in the English-language versions of Directives 87/344 and 2009/138, in Articles 4 and 201 respectively. (61)

83.      It remains to be established whether that interpretation is in line with the objectives pursued by the provisions relating to legal expenses insurance contained in Directive 2009/138.

3.      The objectives pursued by the provisions relating to legal expenses insurance

84.      The question to be decided is the extent to which the objectives to be achieved, set out in the section of Directive 2009/138 devoted to legal expenses insurance, justify interpreting the term ‘proceedings’ using the same approach as that adopted by the Court in respect of the term ‘inquiry’ in the judgments in Massar and in Büyüktipi.

85.      It must be recalled that the Court has constantly reiterated the obligation not to interpret restrictively Article 4(1)(a) of Directive 87/344 with regard to the free choice of lawyer or representative, given the objective pursued by that directive, (62) and noted that that provision is of general application and is obligatory in nature. (63)

86.      In my view, as illustrated by the circumstances in the judgments in Massar and in Büyüktipi, which justified that, on the basis of those principles, the term ‘procedure’ is understood not in its strict sense, namely as the pending lawsuit, but as any stage that precedes a decision-making stage, the freedom of the holder of legal expenses insurance to choose a lawyer or representative must be guaranteed in all situations in which issues relating to the interests of insured persons are to be resolved without recourse to the administration of justice by the State.

87.      The method is of little importance since it is a stage which is liable to culminate in a judicial measure, namely a measure which determines the rights of each person or entity and has the force of res judicata, or is binding, or is even enforceable.

88.      It is precisely because of the consequences of that preliminary stage, during which, as the bar associations have pointed out, the insured person is presented with the wide range of procedural options available to him in the event of his rights being infringed and the legal and factual assessment of their prospects of success, that the free choice of lawyer addresses the concern of broadly protecting the interests of the insured person. (64)

89.      Consequently, since it concerns relations between natural persons or those in which the authorities exercise their powers and formalise them in a decision, that preliminary stage must be characterised by the use, with a view to protecting the rights of the insured person, of a method which aims, first, to avoid court proceedings, but which, secondly, if necessary, will be useful if court proceedings are brought, such as, in addition to the objection, the sending of letters of formal notice or, more generally, any measure capable of interrupting the limitation period.

90.      Since the scope of Article 201(1)(a) of Directive 2009/138 has therefore been determined in line with the objective pursued by that provision, what consequences are to be drawn from it with respect to mediation?

D.      Mediation and the term ‘proceedings’

91.      The most delicate question to address concerns the mediation process which takes place outside of any proceedings that have already been initiated.

92.      Where proceedings have already been brought before a court, mediation, in my opinion, is merely a stage of the ongoing proceedings. It would therefore be contrary to the objectives pursued by the provisions relating to legal expenses insurance contained in Directive 2009/138 for the holder of such insurance not to continue to benefit from the assistance of the lawyer he had originally chosen.

93.      In all other cases, mediation also falls, in my view, under the term ‘proceedings’ within the meaning of Article 201(1)(a) of Directive 2009/138, (65) in respect of the free choice of a lawyer or a different representative, for six main reasons.

94.      First, mediation, an appropriate definition of which can be taken from Article 3(a) of Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, (66) which applies to cross-border disputes, (67) is a stage during which the parties seek a method to settle their dispute amicably. (68)

95.      By using the mediation process, the interested parties aim to find a solution in line with their interests, (69) like those who lodge a complaint with a person or a service in order to be successful. In my view, mediation is merely another means of attaining the same objective.

96.      Moreover, under some national laws, the mediation stage may be compulsory, (70) such as the stage of objection before an administrative body that is provided for by national law in some situations. It cannot therefore be argued that mediation is dependent solely on the good will of the parties. (71)

97.      Secondly, in the mediation process, as in the case of an objection, the lawyer plays a similar role. The lawyer’s role is to provide the insured person with all of the necessary information, allowing him, first, to assess the value of the steps taken in a stage that precedes bringing a case before a court and, secondly, to assist the insured person in successfully concluding those steps, without compromising the ability to initiate proceedings before a court, should it prove necessary, in the event that it has not been possible to reach a lasting agreement. (72)

98.      Thirdly, the effect of mediation on the judicial proceedings is at least equivalent to, if not greater than, the effect of an objection, since mediation is capable of suspending the limitation period, which is the case, inter alia, under Belgian law, as soon as the extrajudicial mediation protocol is signed. (73)

99.      Thus, in the mediation stage, the parties concerned are at a stage which, as a minimum, is a stage that precedes court proceedings, during which the assistance of a lawyer meets the insured person’s ‘need [for] legal protection’, in accordance with the judgment in Büyüktipi (74) and the different wording used in the judgment in Massar. (75) For that reason alone, it is irrelevant whether a third party intervenes, following the parties’ agreement, and whether the solution adopted is not necessarily the solution which corresponds strictly to the rights of each person.

100. Fourthly, such an understanding of mediation as being a stage that precedes a decision-making stage is all the more appropriate since, unlike an objection, which will not be followed by a judgment if the person who considers that he has been harmed is satisfied with the outcome, the mediation stage will lead to proceedings of a judicial nature if the content of the agreement reached between the parties must be made enforceable. (76) That agreement should then be recognised and declared enforceable in the other Member States on the basis, inter alia, of the regulations on the recognition and enforcement of judgments in civil and commercial matters (77) like any decision by a judicial body which is intended to be circulated within the European Union.

101. Moreover, a practical argument can also be made. How is it conceivable for the lawyer or the representative chosen during that second judicial stage not to be the person who assisted the insured person during the stage that precedes it? The free choice of a lawyer or representative is necessary, in my view, to measure effectiveness and to reduce costs.

102. Fifthly, I am also of the opinion that ensuring that the holder of legal expenses insurance can freely choose a lawyer or representative, in the event of mediation, will make an effective contribution to achieving the objective to ‘facilitate access to alternative dispute resolution and to promote the amicable settlement of disputes’ set out in Article 1(1) of Directive 2008/52. (78)

103. Therefore, I propose that the Court consider under this new aspect the interpretation of the provisions on the freedom of the holder of legal expenses insurance to choose a lawyer or representative. When drafting Directive 87/344, the objective of promoting alternative methods of dispute settlement, set out in Article 81(2)(g) TFEU, (79) did not have the same level of importance.

104. Now, the situation is different in view of the exponential increase in litigation experienced by many Member States in the last 10 years. (80)

105. An identical finding may be made in respect of consumer disputes. The same concern to improve access to the judicial system, which leads to the promotion of the use of amicable methods to resolve disputes, resulted in the drafting of Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR). (81)

106. Therefore, it would be inconsistent with the system arising from Directive 2009/138 which seeks to broadly protect the interests of insured persons, on the one hand, and the directives concerning amicable methods to resolve disputes pursuing the same objective through the use of alternatives to bringing proceedings before a national court, on the other, not to allow the holder of legal expenses insurance freely to choose a lawyer or representative.

107. The preferred field of using mediation in disputes arising in everyday life, such as neighbourhood, family or work disputes, also supports that view.

108. Sixthly, from an even broader perspective, I consider that an interpretation of the term ‘proceedings’ which is limited only to ‘court proceedings’ could, in the future, pose risks which I would like to bring to the Court’s attention. Should it not be borne in mind that the constant search for methods intended to promote access to justice in the Member States may lead to national legislative measures being taken which consist in transferring the powers traditionally exercised by the courts to civil or administrative bodies tasked with securing the agreement of the parties? Since that agreement is of a judicial nature, the issue of the choice of lawyer is just as important. (82)

109. Consequently, the judicial framework within which the process or the measure might fall is, in my view, the criterion for the application of Article 201(1)(a) of Directive 2009/138. (83) Therefore, I fail to see how that provision can cover everything in a contract, such as the transaction, or all services, (84) prior to a dispute arising, such as research or the exchange of information or even advice.

110. That limitation is, in my view, an appropriate response to legitimate concerns which may arise as a result of too broad an interpretation of the principle of the free choice of lawyer or representative that is guaranteed to the holder of legal expenses insurance and to the risk of rendering the scope of Article 200(4) of Directive 2009/138 non-existent.

111. For all of those reasons, I am of the opinion that, in line with the judgments in Massar and in Büyüktipi, there are no grounds for interpreting the terms ‘inquiry’ and ‘proceedings’ differently, which leads me to consider that mediation is a stage that precedes a decision-making stage like any objection in the case of an inquiry and may, in some cases, be a stage of court proceedings.

112. That interpretation cannot, in my view, be called into question in the light of the content of Belgian law regarding mediation proceedings conducted by an accredited mediator. (85)

113. In the first place, like the bar associations, I note that the rules applicable to mediation have been codified in the Judicial Code, be it judicial or extrajudicial, that is to say, whether the mediation has been ordered by a court or not.

114. In the second place, the approval of the agreement reached between the parties confers enforceability. I am of the view, unlike the Belgian Government and the Commission, that monitoring whether the agreement is contrary to public policy or to the interests of the child (86) is judicial in nature in so far as it involves a substantive assessment which goes beyond a simple formal examination, as demonstrated by the Court’s case-law on that subject. (87)

115. In the third place, the issue of whether or not the approval is obligatory does not seem to me to be relevant since the mere ability to have recourse to that approval is decisive, like the phase of bringing the matter before a court, which may follow an objection stage. (88)

116. Consequently, the extension to the freedom of the holder of legal expenses insurance to choose a lawyer or representative, as provided for by the Belgian legislature, cannot, in my view, be limited to arbitration since it is based on the concept of ‘proceedings’ in its strict sense, namely the proceedings brought before a court in order to settle a dispute. In my opinion, it must be interpreted broadly and, in addition, independently of any financial considerations, (89) in accordance with the case-law of the Court.

V.      Conclusion

117. In the light of all the foregoing considerations, I propose that the Court answer the question referred for a preliminary ruling by the Grondwettelijk Hof (Constitutional Court, Belgium) as follows:

Article 201(1)(a) 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) must be interpreted as meaning that it precludes national legislation from refusing to allow the holder of legal expenses insurance the free choice of a lawyer or representative in the event of judicial or extrajudicial mediation.

1      Original language: French.

2      OJ 2009 L 335, p. 1.

3      Belgisch Staatsblad,  25 April 2017, p. 53207; ‘the Law of 9 April 2017’.

4      OJ 1987 L 185, p. 77.

5      See Article 310 of Directive 2009/138.

6      Those provisions entered into force on 1 January 2016, as a result of Directive 2012/23/EU of the European Parliament and of the Council of 12 September 2012 amending Directive 2009/138/EC (Solvency II) as regards the date for its transposition and the date of its application, and the date of repeal of certain Directives (OJ 2012 L 249, p. 1), and then Directive 2013/58/EU of the European Parliament and of the Council of 11 December 2013 amending Directive 2009/138/EC (Solvency II) as regards the date for its transposition and the date of its application, and the date of repeal of certain Directives (Solvency I) (OJ 2013 L 341, p. 1).

7      Belgisch Staatsblad, 30 April 2014, p. 35487.

8      Belgisch Staatsblad, 2 July 2018, p. 53455. That law entered into force, with respect to mediation, on 12 July 2018.

9      The referring court has stated that the approval by the court confers on the approved act the enforceability of a judicial decision.

10      The referring court cites the grounds of the judgments of 10 September 2009, Eschig (C‑199/08, ‘the judgment in Eschig’, EU:C:2009:538, paragraphs 38 to 58), and of 7 April 2016, Büyüktipi (C‑5/15, ‘the judgment in Büyüktipi’, EU:C:2016:218, paragraphs 16 to 23). It also refers to the judgments of 7 November 2013, Sneller (C‑442/12, EU:C:2013:717, paragraphs 24 and 25), and of 7 April 2016, Massar (C‑460/14, ‘the judgment in Massar’, EU:C:2016:216, paragraphs 18 to 25).

11      See recital 1 of Directive 2009/138.

12      See the correlation table in Annex VII to Directive 2009/138.

13      See, in that regard, the Court’s finding in the judgment in Eschig (paragraph 46, in respect of Articles 3 to 5 of Directive 87/344, now Articles 199 to 202 of Directive 2009/138, and paragraph 49, relating to Article 3(2) of Directive 87/344, now Article 200 of Directive 2009/138).

14      Emphasis added. See, for an analysis of Article 2 of Directive 87/344, from which Article 198 of Directive 2009/138 originates, Cerveau, B., and Margeat, H., ‘Commentaire de la directive du Conseil des communautés européennes portant coordination des dispositions législatives réglementaires et administratives concernant l’assurance[-]protection juridique’, Gazette du Palais, Lextenso Éditions, Issy-les-Moulineaux, 12 September 1987, pp. 580 to 586, in particular p. 582, according to which the ‘wording [of that article] opens up a broad remit with regard to legal expenses insurance’ and the expression ‘other services’ ‘encompasses … both the advisory stage, given when the dispute arises and the stage of the amicable, and then judicial, follow-up of the case’. See, also, with regard to the insurer’s services being twofold, Bruyr, B., and Dambly, P., ‘Médiation et assurances’, Revue générale des assurances et des responsabilités, Larcier, Brussels, 2014, Vol. 7, paragraph 15.

15      With regard to the relationship between that method for the management of claims and the insured person’s right freely to choose the lawyer, see judgment in Eschig (paragraph 50).

16      See judgment in Eschig (paragraph 40 and also paragraph 44). Emphasis added.

17      See, to the same effect, Bruyr, B., and Dambly, P., cited above, paragraph 16.

18      See point 49 of this Opinion.

19      See point 34 of this Opinion.

20      The Court was asked whether the free choice of a legal representative by the holder of legal expenses insurance could be restricted by the insurer in the event of a ‘mass tort’ or events where a number of persons suffer loss simultaneously, in that case financial investors. The insured person in that case wished to be represented by lawyers chosen by him in several proceedings, including bankruptcy proceedings against investment companies, criminal proceedings against their executive bodies and proceedings against the State based on failures in the supervision of the financial markets.

21      See judgment in Eschig (paragraph 45). That principle was reiterated in the judgment of 7 November 2013, Sneller (C‑442/12, EU:C:2013:717, paragraph 24).

22      See judgments in Eschig (paragraph 47) and of 26 May 2011, Stark (C‑293/10, EU:C:2011:355, paragraph 29), and the summary in paragraph 25 of the judgment of 7 November 2013, Sneller (C‑442/12, EU:C:2013:717).

23      See judgments in Eschig (paragraphs 65 and 66) and of 26 May 2011, Stark (C‑293/10, EU:C:2011:355, paragraph 31).

24      See judgment in Eschig (paragraph 58; see, to the same effect, paragraph 47, which contains the expression ‘inquiries and proceedings’ (emphasis added)).

25      See judgment in Eschig (paragraph 48).

26      See judgment in Eschig (paragraph 50). Emphasis added.

27      C‑293/10, EU:C:2011:355.

28      C‑442/12, EU:C:2013:717.

29      See judgment of 26 May 2011, Stark (C‑293/10, EU:C:2011:355, paragraph 36).

30      See judgment of 7 November 2013, Sneller (C‑442/12, EU:C:2013:717, paragraph 23).

31      It may be observed that, in the judgment of 26 May 2011, Stark (C‑293/10, EU:C:2011:355), the Court gave a decision in respect of the Austrian legislation, recalled in paragraph 11 thereof, which provides that the insured person can freely choose the lawyer ‘to represent him before courts or administrative authorities’.

32      The Court stated, in the judgments in Massar (paragraph 20) and in Büyüktipi (paragraph 18), that the term ‘legal proceedings’ covers proceedings ‘that take place before a court in the strict sense’.

33      See judgment in Büyüktipi (paragraph 13).

34      See judgment in Massar (paragraph 14).

35      See judgment in Massar (paragraph 28).

36      See judgment in Büyüktipi (paragraph 26).

37      See judgments in Massar (paragraph 22 and the case-law cited) and in Büyüktipi (paragraph 20 and the case-law cited).

38      Judgments in Massar (paragraph 19) and in Büyüktipi (paragraph 17).

39      The German- and English-language versions are unchanged and use the terms ‘in einem’ and ‘in any’ respectively. Moreover, the evolution of only the French-language version cannot be relied upon in support of a restrictive reading of Article 201(1)(a) of Directive 2009/138. See, by analogy, judgment in Eschig (paragraph 53).

40      Emphasis added. See, by way of illustration, in a similar situation, judgment of 3 October 2019, Glawischnig-Piesczek (C‑18/18, EU:C:2019:821, paragraph 30).

41      See judgments in Eschig (paragraph 52 and the case-law cited) and of 7 November 2013, Sneller (C‑442/12, EU:C:2013:717, paragraph 22 and the case-law cited). Emphasis added.

42      Emphasis added. See, also, point 42 of this Opinion. See, in addition, Bruyr, B., and Dambly, P., cited above, paragraph 16, with regard to their interpretation of cover for mediation costs.

43      Commission Proposal of 18 July 1979 (COM(79) 396 final).

44      See, for a detailed history, Cerveau, B., and Margeat, H., cited above, p. 581, and, for a reference to that history, the judgment in Eschig (paragraphs 57 and 58).

45      In its opinion on a proposal for a Council Directive on the coordination of laws, regulations and administrative provisions relating to legal expenses insurance (OJ 1980 C 348, p. 22), the Economic and Social Committee had proposed to replace ‘on each occasion when it is necessary to instruct a lawyer’ with ‘inasmuch as it is necessary to instruct a lawyer’.

46      Document No 6767/87 SURE 20.

47      See judgments in Massar (paragraph 20) and in Büyüktipi (paragraph 18).

48      See judgments in Massar (paragraph 21) and in Büyüktipi (paragraph 19).

49      The same, in my view, might apply in the case of ‘proceedings for the taking of evidence’. See judgment of 4 May 2017, HanseYachts (C‑29/16, EU:C:2017:343, paragraph 35).

50      See Bruyr, B., and Dambly, P., cited above, paragraph 1(b)(i). It should be noted that footnotes 12, 14 and 22 refer to repealed provisions.

51      Judgments in Massar (paragraph 23) and in Büyüktipi (paragraph 21).

52      Paragraph 23 of that judgment. Emphasis added.

53      Paragraph 24 of that judgment. Emphasis added.

54      See judgment in Massar (paragraphs 2 and 13).

55      To my knowledge, in accordance with the applicable procedure, which is governed by a decree on dismissal, the employee may defend himself against the employer before the competent public body. That body then has the option to allow the employer and the employee in turn to present their point of view once more. See, also, Holthinrichs, B., ‘Free choice of a lawyer: the ECJ judgments of 7 April 2016 and the concept of “administrative proceedings”’, European Journal of Commercial Contract Law, Paris Legal Publishers, Zutphen, Vol. 8, No 2, 2016, pp. 21 to 27, in particular p. 22.

56      Judgments in Massar (paragraph 25) and in Büyüktipi (paragraph 22).

57      The expression ‘administrative stage’ is used in paragraph 22 of the judgment in Büyüktipi.

58      Judgment in Massar (paragraph 25).

59      Judgments in Massar (paragraph 20) and in Büyüktipi (paragraph 18).

60      See, to that effect, judgments in Massar (paragraph 25) and in Büyüktipi (paragraph 23).

61      With regard to the interpretative method adopted by the Court in the event of divergence between the versions existing in the official languages, see judgment in Eschig (paragraph 54). See, as regards the alignment of language versions, Holthinrichs, B., cited above, p. 25, and footnotes 11 and 16, concerning the German and Dutch versions. The Dutch-language version, according to my investigations, is consistent with the Spanish-, Danish- and Italian-language versions.

62      See judgments in Massar (paragraph 23 and the case-law cited) and in Büyüktipi (paragraph 21 and the case-law cited).

63      See judgment of 7 November 2013, Sneller (C‑442/12, EU:C:2013:717, paragraph 25 and the case-law cited). Cerveau, B., and Margeat, H., cited above (p. 584) had emphasised, before those decisions by the Court, that ‘that requirement of free choice must be considered to be one of the fundamental achievements of [Directive 87/344]. Moreover, it had been planned since the first draft directive in 1979’.

64      See, to the same effect, Bruyr, B., and Dambly, P., cited above, paragraph 19.

65      As a reminder, that issue does not arise with respect to Article 198(1) of that directive, which applies to the bearing of costs. Moreover, the addition of the words ‘or other’ permits a broad coverage of costs. See points 42 and 64 of this Opinion.

66      OJ 2008 L 136, p. 3. In accordance with Article 3(a), mediation means ‘a structured process, however named or referred to, whereby two or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. This process may be initiated by the parties or suggested or ordered by a court or prescribed by the law of a Member State. It includes mediation conducted by a judge who is not responsible for any judicial proceedings concerning the dispute in question. It excludes attempts made by the court or the judge seised to settle a dispute in the course of judicial proceedings concerning the dispute in question’.

67      For a reminder of the scope of that directive and the possibility for the Member States to extend it to internal mediation processes, see judgment of 14 June 2017, Menini and Rampanelli (C‑75/16, EU:C:2017:457, paragraphs 31 and 33).

68      With respect to the distinction between mediation and settlement, see judgment of 18 March 2010, Alassini and Others (C‑317/08 to C‑320/08, EU:C:2010:146, paragraphs 34 to 36).

69      Cf. judgment of 14 June 2017, Menini and Rampanelli (C‑75/16, EU:C:2017:457, paragraph 50).

70      See, by way of illustration, judgment of 14 June 2017, Menini and Rampanelli (C‑75/16, EU:C:2017:457, paragraphs 48 and 49).

71      Cf. recital 19 of Directive 2008/52, in accordance with which ‘mediation should not be regarded as a poorer alternative to judicial proceedings in the sense that compliance with agreements resulting from mediation would depend on the good will of the parties’.

72      See, to the same effect, Bruyr, B., and Dambly, P., cited above, paragraph 19.

73      See Article 1731(3) of the Judicial Code. See, also, recital 24 and Article 8 of Directive 2008/52.

74      Paragraph 23 of that judgment.

75      Paragraph 25 of that judgment is worded as follows ‘… his interests as an insured person require protection’.

76      See, in that regard, Article 6 of Directive 2008/52 and, in the case in the main proceedings, Articles 1733 and 1736 of the Judicial Code and footnote 9 of this Opinion.

77      See Article 6 of Directive 2008/52, read in the light of recital 20 of that directive, which refers, by way of example, inter alia, to Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1 ), now Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1).

78      It should be observed that the words ‘judicial proceedings’, contained in that article, must be read in the light of the judgments in Massar and in Büyüktipi, whose scope I propose the Court accept.

79      Formerly Article 65 TEC. The text in subparagraph (g) was added by the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, in Article 2(66) (OJ 2007 C 306, p. 1).

80      See, with regard to the objective of lightening the burden on the court system pursued in some Member States, inter alia, judgment of 18 March 2010, Alassini and Others (C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 64), concerning court proceedings in certain disputes between providers and end-users under Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on Universal Service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ 2002 L 108, p. 51). Under Article 34 of that directive, Member States must ensure that transparent, simple and inexpensive out-of-court procedures are available, enabling disputes involving consumers and relating to issues covered directive to be settled fairly and promptly (judgment of 18 March 2010, Alassini and Others (C‑317/08 to C‑320/08, EU:C:2010:146, paragraph 38)).

81      OJ 2013 L 165, p. 63. See, with regard to the scope of that directive, judgment of 14 June 2017, Menini and Rampanelli (C‑75/16, EU:C:2017:457, paragraphs 39 and 40).

82      See, in that regard, footnote 64 of my Opinion in Sahyouni (C‑372/16, EU:C:2017:686), in which I cited Hammje, P., ‘Le nouveau règlement [No 1259/2010]’, Revue critique de droit international privé, 2011, No 2, pp. 291 to 338, in particular p. 299, paragraph 7, according to which ‘both courts in a technical sense and administrative authorities, not to mention notaries, will have to apply the new rules, which will accordingly cover various forms of divorce, ranging from a judicial proceeding to an act of private intent which has simply been certified or an exclusively private divorce. What matters is the purpose and not the practicalities of the procedure’. See, also, Cimamonti, S., ‘La déjudiciarisation, une notion ambiguë’, La médiation, expériences, évaluations et perspectives, Actes du Colloque du jeudi 5 juillet 2018, organisé par la Mission de recherche Droit et Justice à l’Auditorium du ministère de la Justice, pp. 6 to 9, in particular p. 7, final paragraph and p. 8, ‘definition’.

83      Cf. the wording used in the 11th recital of Directive 87/344. See point 62 of this Opinion.

84      With regard to that distinction, see Article 198(1) of Directive 2009/138, ab initio, which provides for cover for costs relating to those services. See, also, footnote 14 of this Opinion.

85      See point 20 of this Opinion.

86      See Article 1733, second paragraph, of the Judicial Code.

87      See, by way of illustration, where recourse is had to the concept of ‘public policy’ for the purpose of refusing recognition of a decision emanating from another Member State, judgments of 23 October 2014, flyLAL-Lithuanian Airlines (C‑302/13, EU:C:2014:2319, paragraph 47), and of 16 July 2015, Diageo Brands (C‑681/13, EU:C:2015:471, paragraph 42).

88      See, in that regard, point 100 of this Opinion.

89      See judgments in Massar (paragraph 27 and the case-law cited) and in Büyüktipi (paragraph 25 and the case-law cited), the principles recalled in respect of the interpretation of Directive 87/344 also being valid in respect of Directive 2009/138, as stated in point 34 of this Opinion.

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