Forslag til europaparlaments- og rådsdirektiv om endring av europaparlaments- og rådsdirektiv 2009/103/EF om ansvarsforsikring for motorvogn og kontroll av påbudet om ansvarsforsikring, og håndhevelsen av plikten til å forsikre seg mot slikt ansvar
Proposal for Directiveof the European Parliament and of the Council amending Directive 2009/103/EC of the European Parliament and the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to ensure against such liability
Svensk departementsnotat offentliggjort 9.7.2018
BAKGRUNN (fra kommisjonsforslaget, engelsk utgave)
Reasons for and objectives of the proposal
The Motor Insurance Directive is a key legal instrument that underpins the smooth functioning of the Single Market. It enables seamless crossing of internal EU borders by EU residents with their vehicles for both business and leisure purposes. On the basis of a single premium, EU residents can travel anywhere without the need to buy additional insurance and by the same token the Directive seeks to accomplish a high degree of convergence in terms of protection of potential victims of motor vehicle accidents. The Directive is also instrumental for the functioning of the Schengen Zone.
The first EU Directive on motor insurance 1 was adopted in 1972, with the dual objectives of protecting victims of motor vehicle accidents (with or without a cross-border element), and facilitating the free movement of motor vehicles between Member States. The foundations of EU motor insurance legislation lie in the International Green Card System, a non-EU agreement involving 48 countries, but the EU legislation goes further. Five motor insurance Directives since 1972 progressively strengthened the Directive and enhanced its provisions; they were consolidated into Directive 2009/103/EC (hereafter the Directive). Key elements of the Directive include:
· An obligation on motor vehicles to have a motor third party liability insurance policy, valid for all parts of the EU on the basis of a single premium.
· Obligatory minimum amounts of cover which such insurance policies must provide (Member States may require higher cover at national level).
· A prohibition on Member States from carrying out systematic checks of insurance of vehicles normally based in another Member State.
· An obligation on Member States to create guarantee funds for compensation of victims of accidents caused by uninsured or unidentified vehicles.
· Protection for victims of motor vehicle accidents in a Member State other than their Member State of residence ("visiting victims").
· A right for policyholders to obtain a statement of their claims history for the past five years from their insurer.
To assess the effectiveness, efficiency and coherence of the motor insurance legislation, the Commission Work Programme 2016 announced an evaluation of the Directive 2 . The conclusion of the evaluation was that most elements of the Directive remain fit for purpose, while certain amendments in specific areas would be appropriate.
Furthermore, in the Consumer Financial Services Action Plan of March 2017 3 , the Commission announced that, following an evaluation, it would decide promptly on possible amendments to the Directive to enhance the protection of traffic accident victims where the insurer is insolvent, and to improve the recognition of claims history statements, especially in a cross-border context. The present proposal addresses those two issues, together with three others identified in the evaluation: insurance checks to combat uninsured driving, harmonisation of minimum amounts of cover, and the scope of the directive.
1) Insolvency of the insurer
According to the Directive, compensation bodies must be set up in each Member State to meet costs arising from accidents caused by uninsured or unidentified vehicles. However, such bodies are not currently required to meet costs arising from claims where the motor insurer of the liable party is insolvent. This means that, if national law does not provide for any specific protection scheme, victims of accidents caused by a vehicle insured with an insolvent insurer may be left without compensation.
An accident which involves a liable party with an insolvent insurer poses two main issues. It is not always clear who, if anybody, is responsible for the initial compensation of the victim ("front office"). Second, it is unclear who bears the ultimate financial responsibility for the claim ("back office"). These issues are particularly important when the insurer is providing insurance cross-border via free provision of services. In a number of recent such insolvencies, victims of motor accidents caused by policyholders of the insolvent insurers suffered delays in payment of compensation, while national legal procedures determined the responsibility for and the level of compensation.
2) Claims history
The Consumer Financial Services Action Plan 4 described a possible action in the area of claims history statements, to benefit citizens moving across borders. In order to facilitate switching to a new insurance provider, the current Directive provides that Member States must ensure the policyholder has the right to request a claims history statement covering the last five years. However, there is no requirement on insurers to take such statements into account when calculating premiums. The evaluation revealed that often such statements are ignored by insurers, especially when they are issued by an insurer in another Member State, and sometimes their authenticity is questioned. To facilitate the authentication of claims history statements by insurers it is beneficial that content and format are the same across the EU. In addition, if insurers take into account claims history for the purpose of determining premiums, there should be no differentiation based on nationality or solely on the basis of the previous Member State of residence of the policyholder.
3) Risks due to uninsured driving
According to the Association of European Vehicle and Driver Registration Authorities (EREG 5 ), uninsured driving, circulating with a motor vehicle without a compulsory motor third party liability insurance, is an increasing problem within the EU. The cost for the EU has been estimated at € 870 million in claims in 2011 for the EU as a whole.
Uninsured driving negatively affects a wide range of stakeholders including victims of accidents, insurers, guarantee funds and motor insurance policyholders.
Uninsured driving is a problem both at national level and at the European level. Article 3 of the Directive obliges Member States to "take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance". While the Directive does not prescribe which actions should be taken, Member States have the obligation to take effective action to reduce risks of uninsured driving. They are allowed to conduct domestically systematic verification of motor third party liability insurance of registered policies, establish roadside checks and effective penalties for owners of uninsured vehicles.
Uninsured driving has an EU dimension as uninsured vehicles circulate not only in Member States where they are registered but also in other Member States. However, Article 4 of the Directive prohibits checks of insurance on vehicles normally based in another Member State, as a hindrance to free movement of vehicles in the internal market (and indirectly, of persons).
Article 4 of the current Directive prohibits all systematic checks of insurance of vehicles normally based in another Member State, including those where the vehicle does not need to be stopped. Certain new technological developments (number plate recognition technology) allow however for checks without obstructing vehicles and would not interfere with the free movement of persons and vehicles. Therefore the proposal would allow verification of insurance of vehicles, if the checks form part of a general system of checks on the national territory, are not discriminatory and do not require stopping the vehicle and are necessary and proportionate to achieve the end pursued.
In addition, such verification of insurance of vehicles entering the national territory requires the exchange of data between Member States; in this case it is necessary to safeguard the data subject's rights, freedoms and legitimate interest. The provisions of the EU General Data Protection Regulation 6 apply to the processing of personal data for the purpose of combatting uninsured driving. Domestic legislation would need to respect the conditions and requirements set out in the said Regulation, in particular to ensure that personal data are processed lawfully fairly and in a transparent manner, be collected for specified explicit and legitimate purposes, refer to the relevant legal basis for the processing, comply with the relevant security and confidentiality requirements laid down in the EU General Data Protection Regulation and respect the principles of necessity, proportionality, purpose limitation and proportionate data retention period. Also, personal data protection by design and data protection by default should be embedded in all data processing systems developed and used within the framework of the Member States' legislation. All processing operations including those related to administrative cooperation and mutual assistance between the competent authorities of the Member States should be carried out in compliance with the rules on the protection of personal data laid down in the EU General Data Protection Regulation, and in accordance with the relevant national legislation.
4) Minimum amounts of cover
Article 9 of the Directive lays down minimum obligatory amounts of cover up to which compensation must be provided under a motor third party liability policy. These minimum amounts ensure that there is a sufficient level of minimum protection of victims of motor vehicle accidents across the EU in case of personal injury and material damage, irrespective of the category of vehicle. However, while the Directive aims to establish equal minimum amounts of cover across all EU Member States, currently 13 Member States are subject to lower minimum amounts than the higher amounts laid down in the Directive. This is due to transition periods in accordance with Article 1(2) of the Directive 84/5/ECC, as amended by Directive 2005/14/EC, and allowed some Member States to delay applying the full minimum amounts. However, due to different reference dates for different Member States for periodically recalculating the minimum amounts. there remains a gap between those 13 Member States which benefitted from transition periods and all other Member States. This is because, although the transition periods have meanwhile expired, the respective dates of the end of the transition periods are still used as reference dates for the five-yearly inflation updating. Therefore these minimum amounts are still not the same across all Member States. Member States are free to require domestically amounts of cover in motor third party liability policies higher than the minima imposed by the Directive, but most of the 13 Member States with lower obligatory amounts do not require higher amounts of cover.
5) Scope of the Directive
A number of judgments of the Court of Justice of the European Union, mainly those in the "Vnuk", "Andrade" and "Torreiro" cases 7 have clarified the scope of the Directive. The Vnuk judgement of September 2014 clarified the scope of the motor third party liability insurance obligation in Article 3 of the Directive as covering any activities consistent with the "normal function" of a vehicle, regardless of the location where the vehicle is used. The Rodrigues de Andrade judgement of 28 November 2017 clarified that only the "normal use of the vehicle as a means of transport" and "irrespective of the terrain" should be covered by motor third party liability insurance, excluding accidents where the vehicle was used for exclusively agricultural use. These rulings have clarified that motor vehicles are intended normally to serve as means of transport, irrespective of such vehicles' characteristics, and that the use of such vehicles covers any use of a vehicle consistent with its normal function as a means of transport, irrespective of the terrain on which the motor vehicle is used and of whether it is stationary or in motion. The ruling makes it clear that accidents caused during the normal use of a vehicle for the purpose of transportation, including its use on private properties, remains within the scope of the Directive.
Therefore, to ensure legal certainty and clarity, the present proposal codifies the Court jurisprudence in EU legislation. This ensures uniform implementation of the Court case law in national law.
Justis- og beredskapsdepartementet