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Wednesday, 22 October 2003 - Strasbourg Final edition
Insurance against civil liability for motor vehicles ***I
P5_TA(2003)0446A5-0346/2003
Resolution
 Consolidated text

European Parliament legislative resolution on the proposal for a directive of the European Parliament and of the Council amending Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC, 90/232/EEC and Directive 2000/26/EC of the European Parliament and of the Council on insurance against civil liability in respect of the use of motor vehicles (COM(2002) 244 – C5-0269/2002 – 2002/0124(COD))

(Codecision procedure: first reading)

The European Parliament ,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2002) 244)(1) ,

–   having regard to Article 251(2) and Articles 47, 55 and 95 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C5-0269/2002),

–   having regard to Rule 67 of its Rules of Procedure,

–   having regard to the report of the Committee on Legal Affairs and the Internal Market (A5-0346/2003),

1.  Approves the Commission proposal as amended;

2.  Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

3.  Instructs its President to forward its position to the Council and the Commission.

(1) OJ C 227 E, 24.9.2002, p. 387.


Position of the European Parliament adopted at first reading on 22 October 2003 with a view to the adoption of Directive 2003/…./EC of the European Parliament and of the Council amending Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC, 90/232/EEC and Directive 2000/26/EC on insurance against civil liability in respect of the use of motor vehicles
P5_TC1-COD(2002)0124

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular the first and third sentences of Article 47(2), Article 55 and Article 95(1) thereof,

Having regard to the proposal from the Commission(1) ,

Having regard to the opinion of the European Economic and Social Committee(2) ,

Acting in accordance with the procedure laid down in Article 251 of the Treaty(3) ,

Whereas:

(1)  Insurance against civil liability in respect of the use of motor vehicles (motor insurance) is of special importance for European citizens, whether they are policyholders or victims of an accident. It is also a major concern for insurance undertakings as it constitutes the bulk of non-life insurance business in the Community. Motor insurance also has an impact on the free movement of persons and vehicles. It should therefore be a key objective of Community action in the field of financial services to reinforce and consolidate the single insurance market in motor insurance.

(2)  Very significant advances in this direction have already been achieved by Council Directive 72/166/EEC of 24 April 1972 on the approximation of the laws of Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability(4) , by Second Council Directive 84/5/EEC of 30 December 1983 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles(5) , by Third Council Directive 90/232/EEC of 14 May 1990 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles(6) and by Directive 2000/26/EC of the European Parliament and of the Council of 16 May 2000 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and amending Council Directives 73/239/EEC and 88/357/EEC (Fourth motor insurance Directive)(7) .

(3)  The Community system of motor insurance needs to be updated and improved. This need has been confirmed by the consultation conducted with the industry, consumers and victims" associations.

(4)  Claims for damages arising from an accident caused by a vehicle with a trailer often fail because, although the trailer number plate is known, neither the towing motor vehicle nor its insurer can be identified. Hence there is a need to harmonise the various provisions in the Member States and treat a trailer as equivalent to a motor vehicle. For this purpose the definition of a trailer is required.

(5 )  In order to exclude any possible misinterpretation of the current provisions of Directive 72/166/EEC and to make it easier to obtain insurance cover for vehicles bearing temporary plates, the definition of the territory in which the vehicle is normally based should refer to the territory of the State of which the vehicle bears a registration plate, irrespective of whether such a plate is permanent or temporary.

(6 )  In accordance with Directive 72/166/EEC, vehicles bearing false or illegal plates are considered to be normally based in the territory of the Member State that issued the plates in question. This rule often means that national bureaux are obliged to deal with the economic consequences of accidents which do not have any connection with the Member State where they are established. Without altering the general criterion of the registration plate to determine the territory in which the vehicle is normally based, a special rule should be provided in the case of an accident caused by a vehicle without a registration plate or bearing a registration plate which does not correspond or no longer corresponds to the vehicle. In this case and for the sole purpose of settling the claim, the territory in which the vehicle is normally based should be the territory in which the accident took place.

(7 )  In order to facilitate the interpretation and application of the term "random checks" in Directive 72/166/EEC, the relevant provision should be clarified. The prohibition of systematic checks on motor insurance should apply to vehicles normally based in the territory of another Member State as well as to vehicles normally based in the territory of a third country but entering from the territory of another Member State. Only non-systematic checks which are not discriminatory and are carried out as part of a police control may be permitted.

(8 )  Directive 72/166/EEC permits Member States to derogate in certain cases from the general obligation to take out compulsory motor vehicle insurance. In some of these cases, Member States must ensure that compensation is paid in respect of any loss or injury caused in the territory of another Member State. Such a derogation, which does not jeopardise protection of the victims, should be maintained. In other cases the Member State applying the derogation is not obliged to pay compensation to the victim of an accident occurring abroad so long as other Member States are allowed to require, at the entry into their territory, a valid green card or a frontier insurance contract. However, since the elimination of border controls within the Community, compensation for victims of accidents caused abroad by such non-insured vehicles has ceased to be guaranteed. Derogation in those cases, as provided for in Directive 72/166/EEC, should therefore no longer be permitted. The corresponding provisions in Directive 2000/26/EC should also be deleted.

(9)  Vehicles which are driven to only a very limited extent on the public highway are also included in the certain types of vehicle referred to in Article 4(b) of Directive 72/166/EEC. They include, in particular, trailers used in agriculture and forestry which do not require registration and self-propelled machines. They are not subject to any obligation to be equipped with an additional registration plate.

(10)  The costs of pursuing claims are as a rule an indispensable element of any settlement of damages. They form part of the damages and cover the costs to the accident victim (telephone charges, postage, etc), costs of medical and technical expert services, costs of extra-judicial legal consultations, costs of legal representation and court costs. Such costs should be reimbursed where they are necessary and appropriate. In the event of an accident in another country they are almost always unavoidable.

(11 )  Member States" obligations to guarantee insurance cover beyond certain minimum amounts constitute an important element in ensuring the protection of the victims. The minimum amounts provided for by Directive 84/5/EEC should not only be updated to take account of inflation but should be increased in real terms to improve the protection of victims. Moreover, the current overall minimum amount per claim for personal injuries in the case of more than one victim, as well as the combined amount for personal injuries and damage to property, which reduce the effective insurance cover of victims in certain accidents, should be abolished.

(12)  A review of Article 1(2) of Directive 84/5/EEC is, after nearly twenty years, long overdue. Unlimited cover is rejected by parts of the insurance industry on the grounds that it entails substantial technical accounting risks. The amount of the minimum sum insured for personal injury must be calculated to ensure that accident victims with very severe injuries are sufficiently protected. It must be regarded as extremely rare for two or more such very severe injuries to occur in a single accident. Hence a minimum sum insured of EUR 5 million per accident seems to be sufficient. The minimum sum insured for damage to property must take account of cases in which damage can occur on a massive scale. In such cases a minimum sum of EUR 2 million seems to be sufficient.

(13 )  In order to ensure that the minimum amount of cover is not eroded over time, a periodic review clause should be introduced using as a benchmark the European Index of Consumer Prices (EICP) published by Eurostat, as provided for in Council Regulation (EC) No 2494/95 of 23 October 1995 concerning harmonised indices of consumer prices(8) . The procedural rules governing such a review need to be established.

(14 )  The provision in Directive 84/5/EEC allowing Member States, in the interest of preventing fraud, to limit or exclude payments by the compensation body in the case of damage to property by an unidentified vehicle is liable to impede legitimate compensation of victims in some cases. The option to limit or exclude compensation should not apply where, in addition to damage to property, significant personal injuries have been caused by the same accident and therefore the risk of fraud is negligible. The meaning of significant personal injuries should be determined by each Member State's national legislation.

(15 )  At present, an option contained in Directive 84/5/EEC allows Member States to authorise, up to a specified ceiling, excesses for which the victim would be responsible in the event of damage to property caused by uninsured vehicles. That option unjustly reduces the protection of victims and creates discrimination with respect to victims of other accidents. It should therefore no longer be permitted.

(16 )  Second Council Directive 88/357/EEC of 22 June 1988 on the co-ordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 73/239/EEC (9) should be amended in order to permit branches of insurance undertakings to become representatives with respect to motor insurance activities, as already happens with respect to insurance services other than motor insurance.

(17 )  The inclusion within the insurance cover of any passenger in the vehicle is a major achievement of the existing legislation. This objective would be placed in jeopardy if national legislation excluded passengers from insurance cover because they knew or should have known that the driver of the vehicle was under the influence of alcohol or of any other intoxicating agent at the time of the accident. The passenger is not usually in a position to assess the intoxication level of the driver properly. The objective of discouraging persons from driving whilst under the influence of intoxicating agents is not achieved by reducing the insurance cover for passengers who are victims of motor vehicle accidents. Cover of these passengers under the vehicle's compulsory motor insurance does not prejudge any hypothetical liability they might have incurred pursuant to the applicable national legislation, nor the level of any award of damages in a specific accident .

(18 )  Some insurance undertakings insert into insurance policies clauses to the effect that the contract will be cancelled if the vehicle remains outside the Member State of registration for longer than a specified period. This practice is in conflict with the principle set out in Directive 90/232/EEC, according to which the compulsory motor insurance should cover on the basis of a single premium the entire territory of the Community. It should therefore be specified that the insurance cover should remain valid during the whole term of the contract, irrespective of whether the vehicle remains in another Member State for a particular period, without prejudice to the obligations under Member States" national legislation with respect to the registration of vehicles.

(19 )  Steps should be taken to make it easier for consumers to obtain insurance cover for vehicles despatched from one Member State to another, for the period between acceptance of delivery by the purchaser and registration of the vehicle in the Member State of destination. A temporary derogation from the general rule determining the Member State where the risk is situated should be introduced. For a period of thirty days after acceptance of delivery by the purchaser, the Member State of destination, and not the Member State of registration, should be regarded as the Member State where the risk is situated.

(20 )  The person wishing to take out a new motor insurance contract with another insurer should be able to justify his accident and claims record under the old contract. Upon termination of the contract, the insurance undertaking should provide the policyholder with a statement relating to claims or the absence of claims during the term of the contract within the preceding five years, without prejudice to the right of the parties to an insurance contract to establish the contract premium.

(21 )  In order to ensure due protection for the victims of motor vehicle accidents, Member States should not permit excesses to be relied on against an injured party.

(22 )  The right to invoke the insurance contract and to claim against the insurance undertaking directly is of great importance for the protection of the victim of any motor-vehicle accident. Directive 2000/26/EC already provides victims of accidents occurring in a Member State other than the Member State of residence of the injured party, which are caused by the use of vehicles insured and normally based in a Member State, with a right of direct action against the insurance undertaking covering the responsible person against civil liability. In order to facilitate an efficient and speedy settlement of claims and to avoid as far as possible costly legal proceedings, this right should be extended to victims of any motor vehicle accident.

(23)  Regulation of the period within which accident victims may claim damages varies widely in the European Union. The limitation periods laid down in law range from one year (Spain), through two years (Italy), three years (Germany, Austria, Finland and Portugal), five years (Belgium, the Netherlands and Denmark) and 10 years (France) to 30 years (Luxembourg). Moreover, the beginning of the limitation period is determined by either objective or subjective criteria. It therefore seems appropriate to establish a uniform limitation period. The competence of the Community to establish a direct right of action includes the power to lay down the limitation period. A period of four years from the date of the accident would seem to be appropriate.

(24 )  In order to make it easier for the injured party to seek compensation, the information centres set up in accordance with Directive 2000/26/EC should not be confined to providing information concerning the accidents covered by that Directive but should be able to provide the same kind of information for any motor vehicle accident.

(25)  A trailer represents an independent source of hazard over and above that constituted by the towing vehicle. Hence it would seem justified to treat a trailer as equivalent to a motor vehicle for the purposes of all provisions, including those on compulsory cover.

(26)  Under Article 11(2) in conjunction with Article 9(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (10) , injured parties may bring legal proceedings against the civil liability insurance provider in the Member State in which they are domiciled.

(27)  In many Member States accident documentation held or compiled by the police, the public prosecutor or other authorities is late in being made available to accident victims and insurers – if it reaches them at all. This delays the settlement of accident claims. Establishing a central office would appear to be the only solution for some Member States.

(28 )  Directives 72/166/EEC, 84/5/EEC, 88/357/EEC, 90/232/EEC and 2000/26/EC should therefore be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Amendments to Directive 72/166/EEC

Directive 72/166/EEC is amended as follows:

(1)  In Article 1, point 1 is replaced by the following:

"

1.   "vehicle" means any motor vehicle intended for travel on land and propelled by mechanical power, but not running on rails;

1a. "trailers" means caravans and single- or multiple-axle trailers with a permitted maximum weight of more than 750 kg that are intended to be towed by a motor vehicle, whether or not coupled;

"

(2 )  In Article 1, point 4 is amended as follows:

   (a) The first indent is replaced by the following:"
   - the territory of the State of which the vehicle bears a registration plate, irrespective of whether the plate is permanent or temporary; or
"
   (b) The following indent is added:"
   - in cases where vehicles do not bear any registration plate or bear a registration plate which does not correspond or no longer corresponds to the vehicle and have been involved in an accident, the territory of the State in which the accident took place, for the purpose of settling the claim as provided for in the first indent of Article 2(2);
"

(3 )  In Article 2, paragraph 1 is replaced by the following:

"

1.  Member States shall refrain from making checks on insurance against civil liability in respect of vehicles normally based in the territory of another Member State and in respect of vehicles normally based in the territory of a third country entering their territory from the territory of another Member State.

However, they may carry out non-systematic checks on insurance provided that they are not discriminatory and are carried out as part of a police control .

"

(4 )  In Article 4, point (b) is replaced by the following:

"
   b) certain types of vehicle or certain vehicles not designed to travel on public roads; such vehicles shall be determined by each Member State and shall bear a special registration plate; the Member States shall notify the other Member States and the Commission about these vehicles and their plates.

In that case, the other Member States shall retain the right to require the driver of such a vehicle, while it is travelling on their territory, to produce proof of insurance cover valid in that Member State. The driver shall be required to carry such proof of insurance with him and to show it voluntarily when checked.

"

Article 2

Amendments to Directive 84/5/EEC

Article 1 of Directive 84/5/EEC is replaced by the following:

"

Article 1

1.  The insurance referred to in Article 3(1) of Directive 72/166/EEC shall cover compulsorily both damage to property and personal injuries, together with the necessary and appropriate costs of pursuing claims.

2.  Without prejudice to any higher guarantees which Member States may lay down, each Member State shall require insurance to be compulsory at least in respect of the following amounts:

   a) in the case of personal injury, EUR 5 000 000 per claim ,
   b) in the case of damage to property, EUR 2 000 000 per claim .

Member States may request from the Commission a transition period of up to five years starting from ... (11) to adapt their minimum amounts to the amounts set in points (a) and (b).

3.  Five years after the expiry of the five-year transition period provided for in paragraph 2, the amounts set in that paragraph shall be revised upwards on the basis of a proposal from the Commission in the light of the experience gained in applying the said amounts .

The amounts shall be adjusted automatically. Such amounts shall be increased by the percentage change indicated by the EICP for the relevant period, that is to say, the five years immediately preceding the review, and rounded up to a multiple of EUR 10 000.

The Commission shall communicate the adjusted amounts to the European Parliament and the Council and shall ensure their publication in the Official Journal of the European Union .

4.  Each Member State shall set up or authorise a body with the task of providing compensation, at least up to the limits of the insurance obligation for damage to property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in paragraph 1 has not been satisfied.

The first subparagraph shall be without prejudice to the right of the Member States to regard compensation by that body as subsidiary or non-subsidiary and the right to make provision for the settlement of claims between that body and the person or persons responsible for the accident and other insurers or social security bodies required to compensate the victim in respect of the same accident. However, Member States may not allow the body to make the payment of the compensation conditional on the victim establishing in any way that the person liable is unable or refuses to pay.

5.  The victim may in any case apply directly to the body which, on the basis of information provided at its request by the victim, shall be obliged to give him a reasoned reply regarding the payment of any compensation.

Member States may, however, exclude the payment of compensation by that body in respect of persons who voluntarily entered the vehicle which caused the damage or injury when the body can prove that they knew it was uninsured.

6.  Member States may limit or exclude the payment of compensation by the body in the event of damage to property by an unidentified vehicle.

That option shall not apply where, as a result of the same accident, the victim has suffered physical injuries that have necessitated a hospital stay .

7.  Each Member State shall apply its laws, regulations and administrative provisions to the payment of compensation by this body, without prejudice to any other practice which is more favourable to the victim .

"

Article 3

Amendments to Directive 88/357/EEC

The second sentence in the fourth subparagraph of Article 12a(4) of Directive 88/357/EEC is deleted.

Article 4

Amendments to Directive 90/232/EEC

Directive 90/232/EEC is amended as follows:

(1)  In Article 1, the following paragraph is inserted between the first and second paragraphs:

"

A passenger shall not be excluded from insurance cover on the basis that he knew or should have known that the driver of the vehicle was under the influence of alcohol or of any other intoxicating agent at the time of an accident .

"

(2 )  In Article 2, the first indent is replaced by the following:

"
   - cover, on the basis of a single premium and during the whole term of the contract, the entire territory of the Community, including for any period when the vehicle remains in other Member States during the term of the contract and where it is consistent with the relevant national legislation for them to do so ; and
"

(3 )  The following Articles 4a to 4f are inserted:

"

Article 4a

1.  By way of derogation from the second indent of Article 2(d) of Directive 88/357/EEC, where a vehicle is despatched from one Member State to another, the Member State where the risk is situated may be considered to be the Member State of destination immediately upon acceptance of delivery by the purchaser for a period of thirty days, even though the vehicle has not formally been registered in the Member State of destination.

2.  In the event that the vehicle is involved in an accident during the period mentioned in paragraph 1 while being uninsured, the body referred to in Article 1(4) of Directive 84/5/EEC in the Member State of destination shall be liable for the compensation provided for in that Article.

Article 4b

Member States shall ensure that during the period of validity of an insurance contract concerning a vehicle covered by insurance as referred to in Article 3(1) of Directive 72/166/EEC and within three months of termination , the policyholder shall be provided on request with a statement relating to the claims or the absence of claims involving the vehicle under that contract. The statement must cover all claims made under the contract since inception, but insurers may limit the statement to the previous five years if the contractual relationship exceeds that period.

Article 4c

Excesses shall not be relied on against the injured party to an accident as far as the insurance referred to in Article 3(1) of Directive 72/166/EEC is concerned.

Article 4d

Member States shall ensure that injured parties to accidents caused by a vehicle covered by insurance as referred in Article 3(1) of Directive 72/166/EEC enjoy a direct right of action against the insurance undertaking covering the responsible person against civil liability.

That right shall lapse after four years. The limitation period shall run from the date of the accident.

Article 4e

Member States shall establish the procedure provided for in Article 4(6) of Directive 2000/26/EC of the European Parliament and of the Council* for the settlement of claims arising from any accident caused by a vehicle covered by insurance as referred in Article 3(1) of Directive 72/166/EEC .

Article 4f

Member States shall ensure that, without prejudice to their obligations under that Directive, the information centres established or approved in accordance with Article 5 of Directive 2000/26/EC provide the information specified in that Article to any party to an accident who has suffered damage to property or personal injuries caused by a vehicle covered by insurance as referred to in Article 3(1) of Directive 72/166/EEC.

____________________

* OJ L 181, 20.7.2000, p. 65.

"

Article 5

Amendments to Directive 2000/26/EC

Directive 2000/26/EC is amended as follows:

1.  The following recital 16a is inserted:

"

(16a) Under Article 11(2) in conjunction with Article 9(1)(b) of Regulation (EC) No 44/2001 1 , injured parties may bring legal proceedings against the civil liability insurance provider in the Member State in which they are resident.

_________________

OJ L 12, 16.1.2001, p. 1. Regulation amended by Commission Regulation (EC) No 1496/2002 (OJ L 225, 22.8.2002, p. 13).

"

2.  In Article 4(6), point (a) is replaced by the following:

"
   a) the insurance undertaking of the person who caused the accident or his claims representative is required to make a reasoned offer of compensation that shall include reimbursement of the necessary and appropriate costs of pursuing claims in cases where liability is not contested and the damages have been quantified, or
"

3 .  In Article 5(1), point (a) is amended as follows:

   - point 2(ii) is deleted;
   - point 5(ii) is deleted.

4.  The following Article 6a is inserted:

"

Article 6a

Central body

Member States shall take all appropriate measures to authorise a body to be notified without delay, at the same time as the judicial authorities, of all traffic-accident reports filed by police services. That body shall without delay forward a copy of the document to each insurer or legal practitioner concerned by the accident. If a vehicle is not insured, it shall forward the document without delay to the Guarantee Fund or, if it is insured with a foreign insurer, to the national bureau.

"

Article 6

Application to trailers

The provisions relating to motor vehicles in Directives 72/166/EEC, 84/5/EEC, 88/357/EEC, 90/232/EEC and 2000/26/EC shall apply mutatis mutandis to trailers.

Article 7

Implementation

1.  Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 2004 at the latest. They shall forthwith inform the Commission thereof.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2.  Member States shall communicate to the Commission the text of the main provisions of domestic law which they adopt in the field governed by this Directive.

Article 8

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .

Article 9

Addressees

This Directive is addressed to the Member States.

Done at,

For the European Parliament For the Council

The President The President

(1) OJ C 227 E, 24.9.2002, p. 387.
(2) OJ C 95, 23.4.2003, p. 45.
(3) Position of the European Parliament of 22 October 2003.
(4) OJ L 103, 2.5.1972, p. 1. Directive as last amended by Directive 84/5/EEC (OJ L 8, 11.1.1984, p. 17).
(5) OJ L 8, 11.1.1984, p. 17. Directive as last amended by Directive 90/232/EEC (OJ L 129, 19.5.1990, p. 33).
(6) OJ L 129, 19.5.1990, p. 33.
(7) OJ L 181, 20.7.2000, p. 65.
(8) OJ L 257, 27.10.1995, p. 1.
(9) OJ L 172, 4.7.1988, p. 1. Directive as last amended by Directive 2000/26/EC.
(10) OJ L 12, 16.1.2001, p. 1. Regulation amended by Commission Regulation (EC) No 1496/2002 (OJ L 225, 22.8.2002, p. 13).
(11)* Transposition date for this amending directive.

Последно осъвременяване: 1 май 2004 г.Правна информация