Worldwide: The EFTA Court's Judgment Of 20th July 2017 In Case E-11/16 Mobil Betriebskrankenkasse v Tryg Forsikring Means A Change Of Practice For Norwegian Insurance Companies

Whilst on holiday in Norway in 2011, a German tourist was injured following a car accident with a Norwegian national. Mr Wille received emergency treatment at a Norwegian hospital before being transferred, at his request, to a German facility for further treatment. In addition to the injuries directly related to the accident, he developed a number of ailments that would not be regarded as recoverable under Norwegian insurance law.

Mobil Betribskrankenkasse ("German NAV") incurred significant expenses in covering the German citizen's hospital and treatment costs pursuant to German law, and filed a recourse claim against the Norwegian national's insurance company, Tryg Forsikring, to recover the COSTs.

Tryg accepted liability for the injuries pursuant to the Norwegian Automobile Liability Act (bilansvarsloven), although rejected parts of the claim on the basis that it related to expenses for which the German national for different reasons would not have been entitled to claim compensation for under Norwegian law. The German NAV argued that the material substance of the recourse claim was governed by German Law.

The dispute

In Tryg's view, the injured person had no rights against Tryg to which German NAV could subrogate, since all necessary treatment could have been provided free of charge to him by the Norwegian public health service. German NAV brought the dispute before Oslo District Court, which decided to seek an advisory opinion from the EFTA Court.

In essence, the Court had to answer the following question;

"whether the existence and extent of the subrogated or direct right is to be determined by the legislation of the EEA State of the institution providing benefits, or whether it is determined by the legislation of the EEA State in which the injury occurred."

The Regulation

The Oslo District Court requested an interpretation of Article 85(1) of Regulation No 883/2004. However, as the current case relates to a period before the coming into force of this Regulation, which took effect on 1 June 2012, the relevant provision the Court made reference to was Article 93(1) of Regulation No 1408/711. The two provisions are in essence identical in substance and therefore no assessment of their potential differences is necessary.

Following paragraph 43 of the judgment, Article 93(1) is interpreted as the follows:

"each EEA State must recognise the subrogation of the institution responsible for benefits to the rights which the recipient has against the third party bound to compensate for the injury, or the direct rights of the institution responsible against the third party, where that institution is so subrogated or has such rights under the legislation of the EEA State to which it is subject."

The Court's interpretation of Article 93(1) of Regulation No 1408/7

The Court, at paragraph 47 of the judgement, stated that the existence and extent of a subrogated or direct right is to be determined by the legislation of the EEA State of the institution providing benefits (i.e. Germany) and not determined by the legislation of the EEA State in which the injury occurred (i.e. Norway). However, importantly, the determination of the scope of those rights would fall on the law of the EEA State where the injury occurred, i.e. Norwegian Law.

Therefore, and as a general rule, if the domestic legislation of an EEA State provides in a purely internal situation that a social security institution is subrogated to any entitlement to compensation the injured person has against the person liable or confers on that institution direct rights against the person liable, such subrogation or direct rights apply also in cross-border situations.

This is not to say that the law of the country in which the injury occurred is irrelevant to the subrogated claim. Such an outcome would have been somewhat unreasonable. The court has struck a fair balance in that a subrogated or direct right cannot exceed the rights that the injured person has against the third party responsible for the injury under the national law of the EEA State where the injury occurred, including any applicable rules of private international Law.

Domestic law cannot nullify the effect of Article 93(1)

Finally, the Court emphasized that domestic law (the law of the country where the injury occurred) cannot be applied in a manner which has the consequence of nullifying the very effect of Article 93(1).

Tryg argued that it was entitled to reject parts of the subrogated claim on the basis that the injured party had received, and could have continued to receive, hospital treatment in Norway without giving rise to any extra costs. This argument would have prevented the injured party from claiming compensation with respect to the hospital treatment costs in Norway and Germany, and was consequently rejected by the Court. In rejecting this line of argument, the Court stated that:

"The purpose of such a public health system is not to relieve the responsible party of liability for the costs, but to ensure that the necessary treatment is available to the person".


The judgment implies that it is no longer necessary to accept subrogation claims from foreign welfare institutions without a thorough assessment of the basis and scope of the claim under Norwegian law. On the other hand, Norwegian insurance companies or welfare institutions claiming subrogation in other EEA States will now have to familiarise themselves with the scope of the law where the injury occurred and adjust their claim accordingly.

Another factor which now needs to be taken into consideration is that of the differences between domestic laws, this could create discrepancies in treatment of insurance claims in different EEA countries as each claim must adhere to the scope of the law of the State where the injury occurred.

SANDS is monitoring the developments in this area closely. If you have any questions related to the judgment and its relevance for your insurance company's handling of subrogation claims from foreign welfare institutions, please do not hesitate to contact our insurance team.


[1] Article 93 (1) of Regulation (EEC) No 1408/71 provides: If a person receives benefits under the legislation of one Member State in respect of an injury resulting from an occurrence in the territory of another State, any rights of the institution responsible for benefits against a third party bound to compensate for the injury shall be governed by the following rules: (a) where the institution responsible for benefits is, by virtue of the legislation which it administers, subrogated to the rights which the recipient has against the third party, such subrogation shall be recognized by each Member State; (b) where the said institution has direct rights against the third party, such rights shall be recognized by each Member State.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions