Directive of the European Parliament and of the Council on common limitation periods for cross-border road traffic accidents

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 67(4) and 81(2) thereof,

Having regard to the European Parliament’s request to the European Commission,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

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

Acting in accordance with the ordinary legislative procedure,

Whereas:

(1) The Union has set itself the objective of maintaining and developing an area of freedom, security and justice, in which the free movement of persons is ensured. For the gradual establishment of such an area, the Union is to adopt measures relating to judicial cooperation in civil matters having cross-border implications, particularly when necessary for the proper functioning of the internal market.

(2) Pursuant to Article 81(2) of the Treaty on the Functioning of the European Union, those measures are to include measures aimed at ensuring, inter alia, effective access to justice and the elimination of obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States.

(3) According to the communication of the Commission of 20 April 2010 entitled ‘Delivering an area of freedom, security and justice for Europe's citizens — Action Plan Implementing the Stockholm Programme’ (1), when citizens drive to another Member State and are unfortunate enough to have an accident, they need legal certainty on the limitation periods of insurance claims. To this end, a new Regulation on limitation periods on cross border road traffic accidents to be adopted in 2011 was announced.

(4) Limitation rules have a considerable impact not only on the injured parties’ right to access justice, but also on their substantive rights, since there cannot be an effective right without proper and adequate protection of it. This Directive seeks to promote the application of common limitation periods for cross-border road traffic accidents to secure effective access to justice in the Union. The generally recognised right of access to justice is also reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

(5) The requirement of legal certainty and the need to do justice in individual cases are essential elements of any area of justice. Common limitation periods increasing legal certainty, ensuring that disputes are ended and contributing to an effective enforcement regime are therefore necessary to guarantee the application of that principle.

(6) The provisions of this Directive should apply to claims falling within the scope of application of Directive 2009/103/EC of the European Parliament and of the Council (2) which are of a cross-border nature.

(7) Nothing should prevent Member States from applying any of the provisions of this Directive also to purely internal road traffic accident cases, where appropriate.

(8) All Member States are contracting parties to the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (ECHR). The matters referred to in this Directive should be dealt with in compliance with that Convention and in particular the rights of fair trial and effective remedy.

(9) The principle of the lex loci damni constitutes the general rule established in Regulation (EC) No 864/2007 of the European Parliament and of the Council (3) with regard to the applicable law to cases of personal injury or damage to property, which should thus be determined on the basis of where the damage occurs, regardless of the country or countries in which the indirect consequences could occur. Pursuant to point (h) of Article 15 of that Regulation, the law applicable to non-contractual obligations is to govern in particular the manner in which an obligation can be extinguished and rules of prescription and limitation, including rules relating to the commencement, interruption and suspension of a period of prescription or limitation.

(10) In the field of road traffic accidents, it can be very difficult for a visiting victim to get basic information about the accident from the foreign jurisdiction within a relatively short time, such as the identity of the defendant and liabilities potentially involved. It may also take considerable time to identify which claims representative or insurer should deal with the case, to collect evidence about the accident and to have any necessary documents translated.

(11) It is not uncommon in cross-border road traffic cases for the claimant to be very close to the expiration of a time limit before negotiations can be started with the defendant. This happens most often when the overall time limit is particularly short or when there is ambiguity about the way in which the limitation period can be suspended or interrupted. The gathering of information about an accident, which occurred in a country other than the claimant’s country of residence can take considerable time. Therefore, the running of the general time limit established in the Directive should be suspended, as soon as a claim is made to the insurer or the compensation body, to allow the claimant an opportunity to negotiate the settlement of the claim.

(12) This Directive should set minimum rules. Member States should be able to provide a higher level of protection. Such higher level of protection should not constitute an obstacle to the effective access to justice that such minimum rules are designed to facilitate. The level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of Union law should thereby not be compromised.

(13) This Directive should be without prejudice to Regulation (EC) No 864/2007 and Regulation (EU) No 1215/2012 of the European Parliament and of the Council (4).

(14) This Directive seeks to promote the fundamental rights, and takes into account the principles and values recognised in particular by the Charter, and at the same time seeks to achieve the Union objective of maintaining and developing an area of freedom, security and justice.

(15) Since the objectives of this Directive, namely setting common minimum standards for limitation periods in cross-border road traffic accidents, cannot be sufficiently achieved by the Member States, but can rather, by reason of scale or effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

(16) In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, [the United Kingdom and Ireland have given notice of their wish to take part in the adoption and application of this Directive]/[without prejudice to Article 4 of the Protocol, the United Kingdom and Ireland will not participate in the adoption of this Directive and will not be bound by it or be subject to its application].

(17) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark will not participate in the adoption of this Directive and is not therefore bound by it or required to apply it,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I:

SUBJECT MATTER, SCOPE AND DEFINITIONS

Article 1 Subject matter The objective of this Directive is to lay down minimum standards concerning the overall length, commencement, suspension, and calculation of limitation periods for compensation claims for personal injury and damage to property and recoverable under Directive 2009/103/EC, in respect of cross-border road traffic accidents.

Article 2 Scope This Directive applies to compensation claims in respect of any loss or injury as a result of an accident caused by a vehicle covered by insurance against: a. the insurance undertaking covering the person responsible against civil liability under Article 18 of Directive 2009/103/EC; or b. the compensation body provided for in Articles 24 and 25 of Directive 2009/103/EC.

Article 3 Cross-border road traffic accident 1. For the purposes of this Directive, a cross-border road traffic accident means any road accident caused by the use of vehicles insured and normally based in a Member State and which takes place in a Member State other than that of the habitual residence of the victim or in third countries whose national insurers’ bureaux, as defined in Article 6 of Directive 2009/103/EC, have joined the green card system. 2. In this Directive, the term ‘Member State’ means a Member State other than [the UK, Ireland and] Denmark.

CHAPTER II:

MINIMUM STANDARDS FOR LIMITATION PERIODS

Article 4 Period of limitation 1. Member States shall ensure that a limitation period of at least four years applies to actions relating to compensation for personal injury and damage to property resulting from a cross-border road traffic accident, falling within Article 2. The limitation period shall begin to run from the day on which the claimant became aware, or had reasonable grounds to become aware, of the extent of the injury, loss or damage, its cause and the identity of the person liable and the insurance undertaking covering this person against civil liability or the claim representative or compensation body responsible for providing compensation and against whom the claim is to be brought. 2. Member States shall ensure that where the proper law of the claim provides for a limitation period which is longer than four years, such longer limitation period shall apply. 3. Member States shall ensure that they provide the Commission with up-to-date information on national rules of limitation for damages caused by traffic accidents.

Article 5 Suspension of limits 1. Member States shall ensure that the limitation provided for in Article 4 of this Directive shall be suspended during the period between the claimant’s submission of his or her claim to: a) the insurance undertaking of the person who caused the accident, or its claims representative as provided for in Articles 21 and 22 of Directive 2009/103/EC, or b) the compensation body provided for in Articles 24 and 25 Directive 2009/103/EC, and the defendant’s rejection of the claim. 2. Where the remaining part of the limitation period once the period of suspension ends is less than six months, Member States shall ensure that the claimant is granted with a minimum period of six additional months to initiate court proceedings.

Article 6 Automatic extension of periods Member States shall ensure that if a period expires on a Saturday, Sunday or on one of their official holidays, it shall be extended until the end of the first following working day.

Article 7 Calculation of periods Member States shall ensure that any period of time prescribed by this Directive, shall be reckoned as follows: a) calculation shall start on the day following the day on which the relevant event occurred; b) when a period is expressed as one year or a certain number of years, it shall expire in the relevant subsequent year in the month having the same name and on the day having the same number as the month and the day on which the said event occurred. If the relevant subsequent month has no day with the same number, the period shall expire on the last day of that month; c) periods shall not be suspended during Court holidays.

Article 8 Settlement of claims Member States shall ensure that where victims have recourse to the procedure referred to in Article 22 of Directive 2009/103/EC for the settlement of claims arising from an accident caused by a vehicle covered by insurance, that fact shall not have the effect of preventing victims from initiating judicial proceedings or arbitration in relation to those claims by the expiry of any limitation period under this Directive during the procedure for the settlement of their claim.

CHAPTER III:

OTHER PROVISIONS

Article 9 General information on rules of limitation The Commission shall make publicly available and easily accessible, by any appropriate means and in all Union languages, general information on the national rules of limitation for compensation claims on damages caused by traffic accidents communicated by the Member States pursuant to Article 4(3) of this Directive.

Article 10 Relationship with national law This Directive shall not prevent Member States from extending the rights set out herein to provide a higher level or protection.

Article 11 Relationship with other provisions of Union law This Directive shall not prejudice the application of Regulation (EC) No 864/2007 and Regulation (EU) No 1215/2012.

CHAPTER IV:

FINAL PROVISIONS

Article 12 Transposition 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [one year after the date of entry into force of this Directive]. They shall immediately inform the Commission thereof. 2. When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States. 3. Member States shall communicate to the Commission the text of the measures of national law which they adopt in the field covered by this Directive.

Article 13 Review The Commission shall, not later than 31 December 2025, and every five years thereafter, submit to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Directive on the basis of both qualitative and quantitative information. In this context, the Commission should in particular evaluate the impact of this Directive on access to justice, on legal certainty and on the free movement of persons. If necessary, the report shall be accompanied by legislative proposals to adapt and strengthen this Directive.

Article 14 Entry into force This Directive shall enter into force on the 20th day following that of its publication in the Official Journal of the European Union.

Article 15 Addresses This Directive is addressed to the Member States in accordance with the Treaties.