COMMON POSITION (EC) No 24/1999

adopted by the Council on 21 May 1999

with a view to the adoption of Directive 1999/.../EC of the European Parliament and of the Council of ... 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 Directives 73/239/EEC and 88/357/EEC (Fourth Motor Insurance Directive)

(1999/C 232/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 47(2) and 95 thereof,

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

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

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

(1) Whereas, at present, differences exist between provisions laid down by law, regulation or administrative action in the Member States relating to insurance against civil liability in respect of the use of motor vehicles and those differences constitute an obstacle to the free movement of persons and of insurance services;

(2) Whereas it is therefore necessary to approximate those provisions in order to promote the sound functioning of the single market;

(3) Whereas, by Directive 72/166/EEC(4), the Council adopted provisions 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 to the enforcement of the obligation to insure against such liability;

(4) Whereas, by Directive 88/357/EEC(5), the Council adopted provisions on the coordination 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;

(5) Whereas the green card bureau system ensures the ready settlement of claims in the injured party's own country even where the other comes from a different European country;

(6) Whereas the green card bureau system does not solve all problems of an injured party having to claim in another country against a party resident there and an insurance undertaking authorised there (foreign legal system, foreign language, unfamiliar settlement procedures and often unreasonably delayed settlement);

(7) Whereas, by its resolution of 26 October 1995 on the settlement of claims arising from traffic accidents occurring outside the claimant's country of origin(6), the European Parliament, acting under the second paragraph of Article 192 of the Treaty, called on the Commission to submit a proposal for a European Parliament and Council Directive to solve these problems;

(8) Whereas it is in fact appropriate to supplement the arrangements established by Directives 72/166/EEC, 84/5/EEC(7) and 90/323/EEC(8) in order to guarantee injured parties suffering loss or injury as a result of a motor vehicle accident comparable treatment irrespective of where in the Community accidents occur; whereas, for accidents occurring in a Member State other than that of the injured party's residence, there are gaps with regard to the settlement of injured parties' claims;

(9) Whereas this entails giving the injured party a direct right of action against the insurance undertaking of the responsible party;

(10) Whereas one satisfactory solution might be for injured parties suffering loss or injury as a result of a motor vehicle accident occurring in a Member State other than that of their residence to be entitled to claim in their Member State of residence against a claims representative appointed there by the insurance undertaking of the responsible party;

(11) Whereas this solution would enable damage suffered by injured parties outside their Member State of residence to be dealt with by procedures familiar to them;

(12) Whereas this system of having claims representatives in the injured party's Member State of residence affects neither the substantive law to be applied in each individual case nor the matter of jurisdiction;

(13) Whereas the existence of a direct right of action against the insurance undertaking for the party who has suffered loss or injury is a logical supplement to the appointment of such representatives and moreover improves the legal position of injured parties of motor vehicle accidents occurring outside that party's Member State of residence;

(14) Whereas, in order to fill the gaps in question, it should be provided that the Member State where the insurance undertaking is authorised should require the undertaking to appoint claims representatives resident or established in the other Member State to collect all necessary information in relation to claims resulting from such accidents and to take appropriate action to settle the claims on behalf and for the account of the insurance undertaking, including the payment of compensation therefor; whereas claims representatives should have sufficient powers to represent the insurance undertaking in relation to persons suffering damage from such accidents, and also to represent the insurance undertaking before national authorities including, where necessary, before the courts, in so far as this is compatible with the rules of private international law on the conferral of jurisdiction;

(15) Whereas the activities of the claims representative are not sufficient in order to confer jurisdiction on the courts in the injured party's Member State of residence if the rules of private international law on the conferral of jurisdiction do not so provide;

(16) Whereas the appointment of representatives responsible for settling claims should be one of the conditions for access to and carrying on the activity of insurance listed in class 10 of point A of the Annex to Directive 73/239/EEC(9), except for carriers' liability; whereas that condition should therefore be covered by the single official authorisation issued by the authorities of the Member State where the insurance undertaking establishes its head office, as specified in Title II of Directive 92/49/EEC(10); whereas that condition should also apply to insurance undertakings having their head office outside the Community which have secured an authorisation granting them access to the activity of insurance in a Member State of the Community; whereas Directive 73/239/EEC should be amended and supplemented accordingly;

(17) Whereas, in addition to ensuring that the insurance undertaking has a representative in the State where the injured party resides, it is appropriate to guarantee the specific right of the injured party to have the claim settled promptly; whereas it is therefore necessary to include in national law appropriate effective and systematic financial or equivalent administrative penalties - such as injunctions combined with administrative fines, reporting to supervisory authorities on a regular basis, on-the-spot checks, publications in the national official journal and in the press, suspension of the activities of the company (prohibition on the conclusion of new contracts for a certain period), designation of a special representative of the supervisory authorities responsible for monitoring that the business is run in line with insurance laws, withdrawal of the authorisation for this business line, sanctions to be imposed on directors and management staff - in the event that the insurance undertaking or its representative fails to fulfil its obligation to make an offer of compensation within a reasonable time limit; whereas this should not prejudice the application of any other measure - especially under supervisory law - which may be considered appropriate; whereas, however, it is a condition that liability and the damage and injury sustained should not be in dispute, so that the insurance undertaking is able to make a reasoned offer within the prescribed time limit; whereas the reasoned offer of compensation should be in writing and contain the grounds on the basis of which liability and damages have been assessed;

(18) Whereas, in addition to those sanctions, it is appropriate to provide that interest should be payable on the amount of compensation offered by the insurance undertaking or awarded by the court to the injured party when the offer has not been made within the said prescribed time limit; whereas if Member States have existing national rules which cover the requirement for late-payment interest this provision could be implemented by a reference to those rules;

(19) Whereas injured parties suffering loss or injury as a result of motor vehicle accidents sometimes have difficulty in establishing the name of the insurance undertaking providing insurance against civil liability in respect of the use of motor vehicles involved in an accident;

(20) Whereas, in the interest of such injured parties, Member States should set up information centres to ensure that such information is made available promptly; whereas those information centres should also make available to injured parties information concerning claims representatives; whereas it is necessary that such centres should cooperate with each other and respond rapidly to requests for information about claims representatives made by centres in other Member States; whereas it seems appropriate that such centres should collect information about the actual termination date of the insurance cover but not about the expiration of the original validity of the policy if the duration of the contract is extended owing to non-cancellation;

(21) Whereas specific provision should be made with respect to vehicles (for example, government or military vehicles) which fall under the exemptions from the obligation to be insured against civil liability;

(22) Whereas the injured party may have a legitimate interest in being informed about the identity of the owner or usual driver or the registered keeper of the vehicle, for example if he can obtain compensation only from these persons because the vehicle is not duly insured or the damage exceeds the sum insured, this information should also be provided accordingly;

(23) Whereas certain information provided, such as the name and address of the owner or usual driver of the vehicle and the number of the insurance policy or the registration number of the vehicle, constitutes personal data within the meaning of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(11) whereas the processing of such data which is required for the purposes of this Directive must therefore comply with the national measures taken pursuant to Directive 95/46/EC; whereas the name and address of the usual driver should be communicated only if national legislation provides for such communication;

(24) Whereas it is necessary to make provision for a compensation body to which the injured party apply where the insurance undertaking has failed to appoint a representative or is manifestly dilatory in settling a claim or where the insurance undertaking cannot be identified to guarantee that the injured party will not remain without the compensation to which he is entitled; whereas the intervention of the compensation body should be limited to rare individual cases where the insurance undertaking has failed to comply with its duties in spite of the dissuasive effect of the potential imposition of penalties;

(25) Whereas the role played by the compensation body is that of settling the claim in respect of any loss or injury suffered by the injured party only in cases which are capable of objective determination and therefore the compensation body must limit its activity to verifying that an offer of compensation has been made in accordance with the time limits and procedures laid down, without any assessment of the merits;

(26) Whereas legal persons who are subrogated by law to the injured party in his claims against the person responsible for the accident or the latter's insurance undertaking (such as, for example, other insurance undertakings or social security bodies) should not be entitled to present the corresponding claim to the compensation body;

(27) Whereas the compensation body should have a right of subrogation in so far as it has compensated the injured party; whereas in order to facilitate enforcing the compensation body's claim against the insurance undertaking where it has failed to appoint a claims representative or is manifestly dilatory in settling a claim, the body providing compensation in the injured party's State should enjoy an automatic right of reimbursement with subrogation to the rights of the injured party on the part of the corresponding body in the State where the insurance undertaking is established; whereas the latter body is the best placed to institute proceedings for recourse against the insurance undertaking;

(28) Whereas, even though Member States may provide that the claim against the compensation body may be subsidiary, the injured person may not be obliged to present his claim to the person responsible for the accident before presenting it to the compensation body; whereas in this case the injured party should be in atleast the same position as in the case of a claim against the guarantee fund under Article 1(4) of Directive 84/5/EEC;

(29) Whereas the functioning of this system can be effected by means of an agreement between the compensation bodies established or approved by the Member States relating to their functions and obligations and the procedures for reimbursement;

(30) Whereas, where it is impossible to identify the insurer of the vehicle, provision should be made so that the ultimate debtor in respect of the damages to be paid to the injured party is the guarantee fund provided for in Article 1(4) of Directive 84/5/EEC situated in the Member State where the non-insured vehicle, the use of which has caused the accident, is normally based; whereas, where it is impossible to identify the vehicle, provision must be made so that the ultimate debtor is the guarantee fund provided for in Article 1(4) of Directive 84/5/EEC situated in the Member State in which the accident occurred,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Scope

The objective of this Directive is to lay down special provisions applicable to injured parties entitled to compensation in respect of any loss or injury resulting from accidents occurring in a Member State other than the State of residence of the injured party which are caused by the use of vehicles insured and normally based in a Member State.

Articles 4 and 6 shall apply only in the case of accidents caused by the use of a vehicle:

(a) insured through an establishment in a Member State other than the State of residence of the injured party, and

(b) normally based in a Member State other than the State of residence of the injured party.

Article 7 shall also apply to accidents caused by third-country vehicles covered by Articles 6 and 7 of Directive 72/166/EEC.

Article 2

Definitions

For the purpose of this Directive:

(a) "insurance undertaking" means an undertaking which has received its official authorisation in accordance with Article 6 or Article 23 (2) of Directive 73/239/EEC;

(b) "establishment" means the head office, agency or branch of an insurance undertaking as defined in Article 2(c) of Directive 88/357/EEC;

(c) "vehicle" means a vehicle as defined in Article 1(1) of Directive 72/166/EEC;

(d) "injured party" means an injured party as defined in Article 1(2) of Directive 72/166/EEC;

(e) "the Member State in which the vehicle is normally based" means the territory in which the vehicle is normally based as defined in Article 1(4) of Directive 72/166/EEC.

Article 3

Direct right of action

Each Member State shall ensure that injured parties in accidents occurring in a Member State other than the State of residence of the injured party enjoy a direct right of action against the insurance undertaking covering the responsible person against civil liability.

Article 4

Claims representatives

1. Each Member State shall take all measures necessary to ensure that all insurance undertakings covering the risks classified in class 10 of point A of the Annex to Directive 73/239/EEC, other than carrier's liability, appoint a claims representative in each Member State other than that in which they have received their official authorisation. The claims representative shall be responsible for handling and settling claims arising from an accident in the cases referred to in Article 1. The claims representative shall be resident or established in the Member State where he is appointed.

2. The claims representative shall, in relation to such claims, collect all information necessary in connection with the settlement of the claims and shall take the measures necessary to negotiate a settlement of claims. The requirement of appointing a claims representative shall not preclude the right of the injured party or his insurance undertaking to institute proceedings directly against the person who caused the accident or his insurance undertaking.

3. Claims representatives shall possess sufficient powers and linguistic ability to represent the insurance undertaking in relation to injured parties in the cases referred to in Article 1 and to meet their claims in full.

4. The Member States shall create a duty, backed by appropriate, effective and systematic financial or equivalent administrative penalties, to the effect that, within three monthsof the date when the injured party presented his claim for compensation either directly to the insurance undertaking of the person who caused the accident or to its claims representative,

(a) the insurance undertaking of the person who caused the accident or his claims representative is required to make a reasoned offer of compensation in cases where liability is not contested and the damages have been quantified, or

(b) the insurance undertaking to whom the claim for compensation has been addressed or his claims representative is required to provide a reasoned reply to the points made in the claim in cases where liability is denied or has not been clearly determined or the damages have not been fully quantified.

Member States shall adopt provisions to ensure that where the offer is not made within the three-month time limit, interest shall be payable on the amount of compensation offered by the insurance undertaking or awarded by the court to the injured party.

5. The Commission shall report to the European Parliament and Council on the implementation of paragraph 4, first subparagraph, and on the effectiveness of that provision as well as on the equivalence of national penalty provisions before ...(12) and shall submit proposals if necessary.

6. The appointment of a claims representative shall not in itself constitute the opening of a branch within the meaning of Article 1(b) of Directive 92/49/EEC and the claims representative shall not be considered an establishment within the meaning of Article 2(c) of Directive 88/357/EEC or an establishment within the meaning of the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters(13)

Article 5

Information centres

1. For the purposes of allowing the injured party to seek compensation, each Member State shall establish or approve an information centre responsible:

(a) for keeping a register containing the following information:

(1) the registration numbers of motor vehicles normally based in the territory of the State in question;

(2) (i) the numbers of the insurance policies covering the use of those vehicles for the risks classified in class 10 of Title A of the Annex to Directive 73/239/EEC, other than carrier's liability, and where the period of validity of the policy has expired, also the date of termination of the insurance cover;

(ii) the number of the green card or frontier insurance policy if the vehicle is covered by one of those documents in case the vehicle benefits from the derogation provided for in Article 4(b) of Directive 72/166/EEC;

(3) insurance undertakings covering the use of vehicles for the risks classified in class 10 of title A of the Annex to Directive 73/239/EEC, other than carrier's liability, and claims representatives appointed by such insurance undertakings in accordance with Article 4 whose names shall be notified to the information centre in accordance with paragraph 2 of this Article;

(4) the list of vehicles which, in each Member State, benefit from the derogation from the requirement for civil liability insurance cover in accordance with Article 4(a) and (b) of Directive 72/166/EEC;

(5) regarding the vehicles provided for in point (4):

(i) the name of the authority or the body designated in accordance with the second subparagraph of Article 4(a) of Directive 72/166/EEC as responsible for compensating injured parties in the cases where the procedure provided for in the first indent of Article 2(2) of Directive 72/166/EEC is not applicable, if the vehicle benefits from the derogation provided for in Article 4(a) of Directive 72/166/EEC;

(ii) the name of the body covering the vehicle in the Member State where it is normally based if the vehicle benefits from the derogation provided for in Article 4(b) of Directive 72/166/EEC;

(b) or for coordinating the compilation and dissemination of that information;

(c) and for assisting entitled persons to be apprised of the information mentioned in points (a)(1), (2), (3), (4) and (5).

The information under points (a)(1), (2) and (3) must be preserved for a period of seven years after the termination of the registration of the vehicle or the termination of the insurance contract.

2. Insurance undertakings referred to in paragraph 1(a)(3) shall notify to the information centres of all Member States the name and address of the claims representative which they have appointed in accordance with Article 4 in each of the Member States.

3. The Member States shall ensure that the injured party is entitled within a period of seven years of the accident to obtain from the information centre of the Member State where he resides or of the Member State where the vehicle isnormally based or where the accident occurred the following information:

(a) the name and address of the insurance undertaking;

(b) the number of the insurance policy; and

(c) the name and address of the insurance undertaking's claims representative in the State of residence of the injured party.

Information centres shall cooperate with each other.

4. The information centre shall provide the injured party with the name and address of the owner or usual driver or the registered keeper of the vehicle if the injured party has a legitimate interest in this information. For the purposes of this provision, the information centre shall address itself in particular:

(a) to the insurance undertaking, or

(b) to the vehicle registration agency.

If the vehicle benefits from the derogation provided for in Article 4(a) of Directive 72/166/EEC, the information centre shall inform the injured party of the name of the authority or body designated in accordance with the second subparagraph of Article 4(a) of that Directive as responsible for compensating injured parties in cases where the procedure provided for in the first indent of Article 2(2) of that Directive is not applicable.

If the vehicle benefits from the derogation provided for in Article 4(b) of Directive 72/166/EEC, the information centre shall inform the injured party of the name of the body covering the vehicle in the country where it is normally based.

5. The processing of personal data resulting from the previous paragraphs must be carried out in accordance with national measures taken pursuant to Directive 95/46/EC.

Article 6

Compensation bodies

1. Each Member State shall establish or approve a compensation body responsible for providing compensation to injured parties in the cases referred to in Article 1.

Such injured parties may present a claim to the compensation body in their Member State of residence:

(a) if, within three months of the date when the injured party presented his claim for compensation to the insurance undertaking of the vehicle the use of which caused the accident or to its claims representative, the insurance undertaking or its claims representative has not provided a reasoned reply to the points made in the claim, or

(b) if the insurance undertaking has failed to appoint a claims representative in the State of residence of the injured party in accordance with Article 4(1). In this case, injured parties may not present a claim to the compensation body if they have presented a claim for compensation directly to the insurance undertaking of the vehicle the use of which caused the accident and if they have received a reasoned reply within three months of presenting the claim.

Injured parties may not however present a claim to the compensation body if they have taken legal action directly against the insurance undertaking.

The compensation body shall take action within two months of the date when the injured party presents a claim for compensation to it but shall terminate its action if the insurance undertaking, or its claims representative, subsequently makes a reasoned reply to the claim.

The compensation body shall immediately inform:

(a) the insurance undertaking of the vehicle the use of which caused the accident or the claims representative;

(b) the compensation body in the Member State of the insurance undertaking's establishment which issued the policy;

(c) if known, the person who caused the accident,

that it has received a claim from the injured party and that it will respond to that claim within two months of the presentation of that claim.

This provision 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 who caused the accident and other insurance undertakings or social security bodies required to compensate the injured party in respect of the same accident. However, Member States may not allow the body to make the payment of compensation conditional on the injured party's establishing in any way that the person liable is unable or refuses to pay.

2. The compensation body which has compensated the injured party in his Member State of residence shall be entitled to claim reimbursement of the sum paid by way of compensation from the compensation body in the Member State of the insurance undertaking's establishment which issued the policy.

The latter body shall then be subrogated to the injured party in his rights against the person who caused the accident or his insurance undertaking in so far as the compensation body in the Member State of residence of the injured party hasprovided compensation for the loss or injury suffered. Each Member State is obliged to acknowledge this subrogation as provided by any other Member State.

3. This Article shall take effect:

(a) after an agreement has been concluded between the compensation bodies established or approved by the Member States relating to their functions and obligations and the procedures for reimbursement;

(b) from the date fixed by the Commission upon its having ascertained in close cooperation with the Member States that such an agreement has been concluded,

and shall apply for the whole duration of that agreement.

The Commission shall report to the European Parliament and the Council on the implementation of this Article and on its effectiveness before ...(14) and shall submit proposals if necessary.

Article 7

If it is impossible to identify the vehicle or if, within two months following the accident, it is impossible to identify the insurance undertaking, the injured party may apply for compensation from the compensation body in the Member State where he resides. The compensation shall be provided in accordance with the provisions of Article 1 of Directive 84/5/EEC. The compensation body shall then have a claim, on the conditions laid down in Article 6(2) of this Directive.

(a) where the insurance undertaking cannot be identified: against the guarantee fund provided for in Article 1(4) of Directive 84/5/EEC in the Member State where the vehicle is normally based;

(b) in the case of an unidentified vehicle: against the guarantee fund in the Member State in which the accident took place;

(c) in the case of third-country vehicles; against the guarantee fund of the Member State in which the accident took place.

Article 8

Directive 73/239/EEC shall be amended as follows:

(a)

"in Article 8(1) the following point shall be added:

(f) communicate the name and address of the claims representative appointed in each Member State other than the Member State in which the authorisation is sought if the risks to be covered are classified in class 10 of title A of the Annex, other than carrier's liability."

(b)

"in Article 23(2) the following point shall be added:

(h) communicate the name and address of the claims representative appointed in each Member State other than the Member State in which the authorisation is sought if the risks to be covered are classified in class 10 of title A of the Annex, other than carrier's liability."

Article 9

Directive 88/357/EEC shall be amended as follows:

In Article 12(a)(4) the following subparagraph shall be added:

"If the insurance undertaking has failed to appoint a representative, Member States may give their approval to the claims appointed in accordance with Article 4 of Directive 1999/.../EC(15)assuming the function of the representative appointed according to this paragraph."

Article 10

Implementation

1. Member States shall adopt and publish before ...(16) the laws, regulations and administrative provisions necessary to comply with this Directive. The shall forthwith inform the Commission thereof.

They shall apply these provisions before ...(17).

2. When these measures are adopted by the Member States, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.

3. Without prejudice to paragraph 1 the Member States shall establish or approve the compensation body in accordance with Article 6(1) before ...(18). If the compensation bodies have not concluded an agreement in accordance with Article 6(3) before ...(19), the Commission shall propose measures designed to ensure that the provisions of Articles 6 and 7 take effect before ...(20).

4. Member States may, in accordance with the Treaty, maintain or bring into force provisions which are more favourable to the injured party than the provisions necessary to comply with this Directive.

5. 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 11

Entry into force

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 12

Penalties

The Member States shall fix penalties for breaches of the national provisions which they adopt in implementation of this Directive and take the steps necessary to secure their application. The penalties shall be effective, proportional and dissuasive. The Member States shall notify these provisions to the Commission not later than ...(21) and any subsequent amendments thereof as soon as possible.

Article 13

Addressees

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

The President

For the Council

The President

(1) OJ C 343, 13.11.1997, p. 11.

(2) OJ C 157, 25.5.1998, p. 6.

(3) Opinion of the European Parliament of 16 July 1998 (OJ C 292, 21.9.1998, p. 123), Council Common Position of 21 May 1999 and Decision of the European Parliament of ... (not yet published in the Official Journal).

(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 172, 4.7.1988, p. 1. Directive as last amended by Directive 92/49/EEC (OJ L 228, 11.8.1992, p. 1).

(6) OJ C 308, 20.11.1995, p. 108.

(7) 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 (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).

(8) 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 (OJ L 129, 19.5.1990, p. 33).

(9) First Council Directive (73/239/EEC) of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance (OJ L 228, 16.8.1973, p. 3). Directive as last amended by Directive 95/26/EC (OJ L 168, 18.7.1995, p. 7).

(10) Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive) (OJ L 228, 11.8.1992, p. 1). Directive as amended by Directive 95/26/EC (OJ L 168, 18.7.1995, p. 7).

(11) OJ L 281, 23.11.1995, p. 31.

(12) Five and a half years from the date of the entry into force of this Directive.

(13) OJ C 27, 26.1.1998, p. 1 (consolidated version).

(14) Five years from the entry into force of this Directive.

(15) Directive 1999/.../EC of the European Parliament and of the Council of ... 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 Directive 73/239/EEC and 88/357/EEC (OJ L ...).

(16) 24 months from the date of entry into force of this Directive.

(17) 30 months from the date of entry into force of this Directive.

(18) 18 months from the date of entry into force of this Directive.

(19) 24 months from the date of entry into force of this Directive.

(20) 30 months from the date of entry into force of this Directive.

(21) 24 months from the date of entry into force of this Directive.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 10 October 1997, the Commission submitted a proposal(1) for a Directive 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 Directives 73/239/EEC and 88/357/EEC (Fourth Motor Insurance Directive), based on Articles 47(2) and 95 of the EC Treaty.

2. The European Parliament delivered its opinion on 16 July 1998(2) at a first reading. Following receipt of that opinion, the Commission submitted an amended proposal on 31 March 1999(3).

The Economic and Social Committee delivered its opinion on 25 March 1998(4).

3. On 21 May 1999, the Council adopted its common position in accordance with Article 251 of the Treaty.

II. PURPOSE

4. The purpose of the proposal is to improve the present remedies available to persons who are temporarily in a Member State other than their State of residence and suffer loss or injury in that Member State caused by a vehicle registered and insured in a Member State other than their State of residence.

III. ANALYSIS OF THE COMMON POSITION

5. The common position corresponds substantially to the Commission's amended proposal. It therefore takes account of most of the Parliament's amendments which have been accepted by the Commission.

In most cases the Council has introduced textual clarifications or minor modifications which are compatible with the overall orientation of the European Parliament amendments and the amended Commission proposal.

The Commission agrees to all modifications introduced by the Council.

Amendments accepted without modifications or with minor editorial changes

6. The Council has accepted amendment 1 referring to the green card bureau (recital 5). The Council has furthermore accepted amendment 2 (recital 6) stating that the green card bureau system does not solve all problems of an injured party having to claim in another country against a party resident there and an insurer authorised there (a foreign legal system, a foreign language, unfamiliar settlement procedures and often unreasonable delayed settlement).

7. The Council also accepts amendment 3 (recital 7) concerning the European Parliament resolution of 26 October 1995 calling on the Commission to submit a proposal.

8. Amendment 4 (recital 8) refers to the necessity of supplementing the existing legislation in order to better protect visiting motorists when they are the injured party in an accident. The Council has accepted this amendment.

9. As regards amendments 5 and 6 (recitals 10 and 11) the Council accepts that the appointment of a claims representative would enable the injured party to deal with his claim by procedures familiar to him. The Council also accepts amendment 7 (recital 12), which stipulates that the appointment of a claims representative does not affect either the substantive law to apply or the matter of jurisdiction.

10. Amendment 9 (recital 9) which stipulates that the injured party must have a direct right of action against the other party's insurer, has been accepted by the Council.

11. The Council accepts amendment 12 (recital 19 and 20) concerning which information the information centres should make available to injured parties.

12. The Council has accepted amendment 13 (recital 24) concerning the cases where the insurer has failed to appoint a claim representative or where this claim representative cannot be identified.

13. The Council accepts the clarification of the scope (amendment 15) of the Directive (Article 1).

14. The Council has incorporated amendment 16 (Article 3) concerning the injured party's direct right of action.

15. The Council has accepted amendment 21, which deletes the reference to the claim representative's qualification.

Amendments accepted in principle

16. The Council has incorporated in a slightly modified form amendment 10 concerning the claims representative's ability to represent the insurer and to settle accident claims (recital 14).

17. The Council has incorporated, in principle, amendment 17 (Article 4(1)). The Council agrees with the provision stating that a claims representative shall be appointed in each Member State other than that in which the insurer has received its official authorisation. However, the Council has incorporated the part laying down that the claims representative shall be instructed and authorised to settle claims, in a slightly modified form; Article 4(3) establishes that the claims representative shall possess sufficient power to represent the insurer (consequently, amendment 22 is not accepted by the Council).

Furthermore, Article 4(3) lays down that the claims representative shall possess linguistic ability to represent the insurer (amendment 18, second sentence).

The Council has neither incorporated the first part of amendment 18 nor amendment 19; however, in substance, the Council has no difficulties in accepting that a claim representative may act for one or more insures. It is the opinion of the Council that insures decide among themselves which claims representative they wish to appoint.

18. The Council has accepted, in principle, amendments 24 (Article 4(6)); this amendment stipulates that the activities of a claims representative shall not establish jurisdiction in the injured party's Member State.

19. Concerning amendment 28 (Article 5(1)), the Council has accepted, in principle, that the information centres shall keep a register of vehicles normally based in the Member State concerned, and a list of vehicles which benefit from the derogation of the requirement of civil liability insurance cover (e.g. military and government vehicles).

20. The Council has incorporated, in principle, amendment 25. This amendment stipulates that the procedures laid down in the Directive do not preclude the right of the injured party or his insurer to start proceeding directly against the person responsible for the accident or his insurer (Article 4(2)). However, the Council has introduced a specific article; consequently, the Council has not accepted amendment 20.

Amendments partly accepted

21. The Council has partly accepted amendment 26 (Article 4(4)). The Council agrees with the European Parliament that the claims representative within a certain period either shall make a reasoned offer or make a reasoned reply. However, the Council has shortened the period within the claims representative shall react to three months.

The Council has neither incorporated the part of the amendment referring to the injured party's health nor to the possibility to suspend the time limits. The Council finds those provisions too detailed.

22. Furthermore, the Council has partly accepted amendment 27 concerning payment of interest (Article 4(4)). However, the Council has not accepted the part of the amendment concerning the exact interest rate. The Council thinks that late payment interest in most Member States is a part of civil law rules and such interest should not be confused with the sanctions provided for in the first subparagraph of this Article (see point 30). The text does not include any references to the modalities of application, but leaves it up to Member States to decide how this provision is implemented.

23. The Council has partly accepted amendment 29. The c4 accepts that the insurer shall notify to the Information Centres in all Member States the name and address of its claims representative. Furthermore, the Council has incorporated a provision which lays down that the Compensation bodies shall cooperate with each other. However, the Council has not accepted the part of the amendment which lays down that the insurer shall notify information concerning the person insured. The Council thinks that it is up to each Member State to decide how this information is provided.

24. The Council accepts that the injured party who has a legitimate interest can obtain the name and the address of the owner or usual driver (amendment 30). However, the Council has, for practical reasons, not accepted that the injured is entitled to obtain information within a few days.

Furthermore, the Council does not think it necessary to give information about the actual termination date of the contract.

25. The Council has partly accepted amendment 33 (Article 6). The Council accepts that the injured party may refer the matter to the Compensation body if the insurer has failed to appoint a claims representative or has not given a reasoned offer/reply.

The Council also accepts that the Compensation body shall act within two months and that it shall inform the insurer.

The Council does not accept that the scope of the Directive be extended to third countries. However, the Council notes that the Commission will present a report to the European Parliament and the Council on the possibilities of extending the scope to cover accidents occurring in third countries by means of international agreement.

Amendments not accepted

26. The Council does not consider amendment 8, referring to the percentage of accident claims settled outside of Courts to be appropriate in a Directive. Consequently, the Council has not accepted this amendment.

27. The Council has not accepted the deletion of the reference to direct right of action against the insurer (amendment 11 - recital 13).

28. The Council has not accepted amendment 14 (deletion of recital 29) because the Council thinks that it is essential to have provisions if the insurer cannot be identified.

29. The Council has not accepted amendments 19 (see point 17), 20 (see point 18) and 22 (see point 17).

30. Amendment 23 has not been accepted by the Council. The Council thinks that it is an essential part of this legislation that the Compensation body's duty is backed by appropriate effective and systematic financial or equivalent administrative penalties (Article 4(4)).

31. The Council has not incorporated amendment 31 (prompt disclosure of information) and amendment 32 (a charge for requested information) because it feels that the provisions are too detailed to be incorporated in a Directive.

32. As regards unidentified vehicles (amendment 34), the Council has not accepted the deletion of this provision (Article 7). The Council considers it essential that provisions are made also for unidentified and third country vehicles.

33. The Council has not accepted amendment 35 (implementation) because it prefers the normal procedure to apply. Finally, the Council has not accepted amendment 36, which stipulates that the supervisory authorities shall monitor compliance with the Directive. The Council thinks this is self-evident.

IV. CONCLUSION

34. The Council has accepted and incorporated most of the amendments proposed by the European Parliament. By doing so, the Council has indicated clearly that it shares the opinion of the European Parliament that a better protection of injured parties in traffic accidents is required and justified.

(1) OJ C 343, 13.11.1997, p. 11.

(2) OJ C 292, 21.9.1998, p. 123.

(3) OJ C 171, 18.6.1999, p. 4.

(4) OJ C 157, 25.5.1998, p. 6.