REPORT with recommendations to the Commission on limitation periods in cross-border disputes involving injuries and fatal accidents

    23.11.2006 - (2006/2014(INI))

    Committee on Legal Affairs
    Rapporteur: Diana Wallis
    (Initiative – Rule 39 of the Rules of Procedure)

    Procedure : 2006/2014(INL)
    Document stages in plenary
    Document selected :  
    A6-0405/2006

    MOTION FOR A EUROPEAN PARLIAMENT RESOLUTION

    with recommendations to the Commission on limitation periods in cross-border disputes involving injuries and fatal accidents

    (2006/2014(INI))

    The European Parliament,

    –   having regard to the second paragraph of Article 192 of the EC Treaty,

    –   having regard to Rules 39 and 45 of its Rules of Procedure,

    –   having regard to the report of the Committee on Legal Affairs (A6‑0405/2006),

    A. whereas in Europe there is a divergence in respect of limitation periods, the commencement of the running of time, the date of knowledge, the ability to interrupt or stop the running of time, the presentation of evidence and the assertion of the defence of the expiry of the limitation period,

    B.  whereas the extent of such divergence may give rise to undesirable consequences for the victims of accidents in cross-border litigation, placing obstacles in the way of injured individuals when they are exercising their rights in Member States other than their own, and in some cases potentially also their own State, and are required to rely upon foreign law,

    C. whereas, in particular, the following issues arise in relation to trans-national accidents: in some countries minors and persons under a disability are not afforded any special protection in respect of the running of time for limitation purposes, and may thus lose rights to claim compensation which they would otherwise retain, when injured in a Member State other than their own; in some countries the only way to stop the running of time for limitation purposes is to issue or serve proceedings: in cross-border litigation such an approach may give rise to problems since negotiations will necessarily take longer and an inability to prevent the limitation clock from continuing to tick may place the victim in the disadvantageous position of having to incur considerable costs at an early stage by issuing and serving proceedings before it becomes possible to conclude negotiations,

    D. whereas, given the divergences in relation to limitation periods in trans-national personal injury cases, it might be appropriate for some principles to be laid down that are confined to essentials,

    E.  whereas the condition in Rule 39(2), that no proposal should be in preparation, is duly fulfilled,

    1.  Calls on the Commission to carry out an inquiry into the effects of the existence of differing limitation periods on the internal market, and particularly on citizens exercising their freedoms under the Treaty. In particular, this study should seek to quantify the number of personal injury cases involving a cross-border element and assess any difficulties and/or hardship caused to injured parties as a result of the divergence of limitation periods, having regard to the issues set out in recital B;

    2.  Calls on the Commission to draw up a report on limitation periods following the evaluation of the study, dealing in particular with possible options ranging from a limited harmonisation of limitation periods to the use of a conflict-of-laws rule;

    3.  Requests the Commission, where appropriate, in the light of the inquiry carried out pursuant to paragraph 1 and after consulting Parliament, to submit to Parliament, on the basis of Article 65(c) and the second indent of Article 67(5) of the EC Treaty, a legislative proposal on limitation periods in respect of personal injury and fatal accident claims in cross-border litigation, following the detailed recommendations below;

    4. Confirms that the recommendations respect the principle of subsidiarity and the fundamental rights of citizens; calls on the Commission to verify carefully that the principle of subsidiarity and considerations of proportionality are stringently enforced; particular attention should be paid to ensuring that the least intrusive form of legislation is selected and to examining whether, for example, the problem might not be best resolved by introducing the country of origin principle;

    5.  Considers that the proposal requested must not have any financial implications;

    6.  Instructs its President to forward this resolution and the accompanying detailed recommendations to the Commission and the Council and to the Parliaments and Governments of the Member States.

    ANNEX TO THE MOTION FOR A RESOLUTION:

    DETAILED RECOMMENDATIONS ON THE CONTENT OF THE PROPOSAL REQUESTED

    Recommendation 1 (as to the form and scope of the instrument to be adopted)

    Parliament considers that principles governing limitation periods should be laid down in appropriate form, in so far as the Community possesses legislative competence in this area, for damages claims:

    -    arising from or resulting from personal injury,

    -    brought by the victim's heirs, or

    -    brought by another person where the victim suffered personal injuries or had a fatal accident,

    where the proceedings involve parties residing or domiciled in different Member States, or a party residing or domiciled in a non-Community State, or a choice between the laws of different countries.

    Recommendation 2 (as to the minimum content of the instrument to be adopted)

    Length, computation, starting date, suspension and interruption of the limitation period

    -    The general limitation period should be 4 years irrespective of the nature of the obligation, the cause of action, or the identity of the defendant, except where the proper law of the claim provides for a longer period, in which case the burden of proving the existence of that longer period is to be discharged by the claimant. The limitation period for enforcing a damages claim established by a final judgment or arbitral award should be 10 years. No limitation should apply to damages arising out of terrorist acts, torture or slavery.

    -    The limitation period should expire upon expiry of the last moment of its last day; it should be computed in accordance with the regular calendar of the Member State in which the claimant issues proceedings; and the day on which the cause of action arises should not be counted. If a limitation period is extended, the new limitation period should be computed from the date of the expiry of the preceding limitation period.

    -    The limitation period should start:

    (1)     from the date on which the cause of action for personal injury accrued or from the date of (actual or constructive) knowledge (if later) of the person injured;

    (2)     in the case of claims by heirs, from the date of death or the date of (actual or constructive) knowledge (if later) of the heirs or the estate;

    (3)     in the case of claims by secondary victims, the date of death or the date of (actual or constructive) knowledge (if later) of the secondary victim (fatal accidents) or the date on which the cause of action accrued or the date of (actual or constructive) knowledge (if later) of the person injured (non-fatal accidents).

    -    The running of the limitation period should be suspended where the defendant has deliberately, dishonestly, unreasonably or as a result of a mistake concealed the existence of facts or matters giving rise to the liability of the defendant. It should also be suspended during related criminal proceedings/investigations or where there is an outstanding request/claim under the Fourth Motor Insurance Directive.

    -    The limitation period should be interrupted by the commencement of judicial proceedings; any act of the claimant notified to the defendant having the purpose of commencing extra-judicial proceedings; any act of the claimant notified to the defendant having the purpose of initiating negotiations; any other act of the claimant notified to the defendant informing the defendant of the fact of the claimant’s claim for damages.

    Appropriate provisions should be included on pleading limitation, discretion of the court in applying the limitation period, the effects of successfully pleading limitation and multiple claimants/defendants.

    In addition, Member States should be required to set up national information centres for keeping a register of all criminal investigations or pending proceedings involving foreign victims and for providing written answers to reasoned requests for information made by or on behalf of foreign victims.

    PROCEDURE

    Title

    Report with recommendations to the Commission on limitation periods in cross-border disputes involving injuries and fatal accidents

    Procedure number

    2006/2014(INI)

    Committee responsible

    JURI

    Date authorisation announced in plenary (Rule 45)

    19.1.2006

    Date authorisation announced in plenary (Rule 39)

    19.1.2006

    Committee(s) asked for opinion(s)
      Date announced in plenary

     

     

     

     

     

    Not delivering opinion(s)
      Date of decision

     

     

     

     

     

    Enhanced cooperation
      Date announced in plenary

     

     

     

     

     

    Rapporteur(s)
      Date appointed

    Diana Wallis

    12.12.2005

     

    Previous rapporteur(s)

     

     

    Discussed in committee

    23.2.2006

    21.3.2006

    3.5.2006

    30.5.2006

    21.11.2006

    Date adopted

    21.11.2006

    Result of final vote

    +:

    –:

    0:

    20

    0

    0

    Members present for the final vote

    Maria Berger, Carlo Casini, Rosa Díez González, Giuseppe Gargani, Klaus-Heiner Lehne, Antonio López-Istúriz White, Achille Occhetto, Aloyzas Sakalas, Gabriele Stauner, Diana Wallis, Jaroslav Zvěřina

    Substitute(s) present for the final vote

    Nicole Fontaine, Jean-Paul Gauzès, Othmar Karas, Eva Lichtenberger, Arlene McCarthy, Manuel Medina Ortega

    Substitute(s) under Rule 178(2)
    present for the final vote

    Sharon Bowles, Albert Deß, Ewa Klamt

    Date tabled

    23.11.2006

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