AMENDED PROPOSAL FOR A THIRD COUNCIL 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
Date: 1989-12-06
Institutions: European Commission
Subjects: approximation of laws, motor vehicle, third-party insurance

COMMISSION  OF  THE  EUROPEAN  COMMUNITIES 

C0MC89) 625 

final -SYN 165 

Brussels, 6  December 1989 

Amended  Proposal  for a Third 

COUNCIL  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 

(presented by the Commission pursuant to Article 149 (3) 
of the EEC Treaty) 

-  2 -

EXPLANATORY  MEMORANDUM 

1. 

On  23  December  1988  the  Commission  presented  to  the  Council  a 

proposal  for  a third Council  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^). 

This  proposal, which  Is one of  the measures  envisaged  In  the  1985 

White  Paper  on  the  completion  of  the  Internal  market,  seeks  to 

complete  the  system  created  by  the  first  two  third  party  motor 

Insurance  directives of  1972^2^  and  1983(3). 

These  enabled  green  card  checks  to  be  abolished  and  began  the 

process  of  reducing  the dI spar it les.between  tpe  levels and  content 

of compulsory  third party motor  Insurance  In the Member  States. 

2. 

The Economic and Social  Committee  delivered  Its opinion on  26 April 

1 9 8 9 W.  The  European  Parliament  has completed  Its  first  reading, 

delivering  its  opinion  on  25th October  1989  on  the  basis  of  the 

report  prepared  by  its Legal  Affairs  Committee^5).  Acting  on  the 

basis  of  the  third  paragraph  of  Article  149  of  the  Treaty,  and 

taking  account  of  the  two opinions,  the Commission  hereby  presents 

an amended  version of  its proposal  for a Directive. 

3. 

Two out of  the three amendments  recommended  by Parliament  have been 

Incorporated,  in  spirit  if  not  to  the  letter.  Some  of  the 

observations  formulated  by  the  Economic  and  Social  Committee  have 

also been  taken  Into account.  A number  of additional  amendments to 

improve  and  clarify  the  preamble  are  also  proposed,  in particular 

to  bring  out  more  clearly  the  relevance  of  this  measure  to  the 

internal  market  programme. 

(1)  C0M(88)644 final  - SYN 165, OJ  No. C 16, 20-1-1989, p. 12. 
(2)  Directive 72/166/EEC; OJ No. L 103, 2-5-1972, p. 2. 
(3)  Directive 84/5/EEC; OJ No. L 8, 11-1-1984, p. 17. 
(4)  OJ No. C  159, 26-6-1989. 
(5)  Doc. PE 134.232 fin. 

-  3 -

The  Commission  has  not  followed  Parliament's  proposed  amendment 

No.  2 dealing  with  the  situation  where  the victim  Is unable  to  find 

out  the  name of  the  insurer  of  the  party  liable  In an  accident.  No 

evidence  has  been  submitted  to  the  Commission  by  the  member  States 

to  show  that  this problem  is particularly  serious or  widespread. 

Comments  on  the  Individual  Amendments  Proposed 

5. 

in  Article  1  the  reference  to  Article  1  (1)  of  Directive  84/5/EEC 

is now  considered  superfluous  and  has been  deleted. 

6. 

The  proposed  amendment  to Article  2, second  indent,  is put  forward 

In  response  to  the  spirit  of  Amendment  No.  1  in  Parliament's 

opinion.  It  seeks  to  ensure  that»a  motorist  using  his  vehicle 

outside  his  home  State  will  never  have  less  than  his  home  State 

insurance  cover. 

7. 

Article  4  Is  amended  in  accordance  with  the  spirit  of  Amendment 

No.  3  In  Parliament's  opinion,  namely  the  desire  to  find  a  more 

flexible  solution  to  the  problem  raised  by  a  dispute  between  a 

liability  Insurer  and  the guarantee  fund. 

8. 

A  new  paragraph  2  Is added  to Article  5  to allow  four  Member  States 

transitional  periods  under  Article  8c  of  the  Treaty  for  the 

application of  certain  provisions of  the  directive. 

Amended  proposal  for a third 

COUNCIL  DIRECTIVE 

on the approximation of  the  laws of the member  states relating  to 
nsurance against  civil  liability  In respect of  the use of motor  vehicles 

Initial  Proposal 

Amended  Proposal 

Unchanged 

THE  COUNCIL  OF  THE  EUROPEAN  COMMUNITIES, 

Having  regard  to  the  Treaty  establishing  the  European 
Economic  Community,  and  in  particular  Article  100a 
thereof, 

Having  regard  to  the  proposal  from  the  Commission, 

In  cooperation  with  the  European  Parliament, 

Having  regard 
Social  Committee, 

to  the  opinion  of  the  Economic  and 

Whereas,  by  Directive  72/166/EEC (*),  as  last  amended 
adopted 
by  Directive  84/5/EEC  (*), 
provisions  on  the  approximation  of  the  laws  of  the 
Member  Sûtes  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; 

the  Council 

Whereas  Article  3  of  Directive  72/166/EEC  required 
each  Member  State  to  take  ail  appropriate  measures  to 
ensure  that  civil  liability  in  respect  of  the  use  of  vehicles 
normally  based  in  its  territory  is  covered  by  insurance; 
whereas  the  extent  of. the  liability  covered  and  the  terms 
and  conditions  of 
insurance  cover  were  to  be 
the 
determined  on  the  basis  of  those  measures; 

Whereas  Directive  84/5/EEC  reduced  considerably  the 
disparities  between  the  level  and  content  of  compulsory 
civil  liability  insurance  in  the  Member  States; 

Whereas,  however,  significant  disparities  still  exist  in  the 
coverage  of  such  insurance; 

d) 
( 2) 

OJ  No.  L  1 0 3,  2 . 5 . 1 9 7 2,  p.  2. 
0J  No.  L  8',  1 1 . 1 . 1 9 8 4,  p.  1 7. 

h 

-  À 

-

Whereas  the  elimination  of  such  disparities, by ensuring 
that  motor  vehicle  accident  victims  receive  comparable 
treatment  irrespective  of  where  in  the  Community  an 
accident  occurs,  will  further  facilitate  the  establishment 
and  the  operation  of  the  internal  market; 

Whereas motor vehicle accident victims 
should be guaranteed comparable treatment 
Irrespective of where  In the Community an 
accident occurs; 

Whereas,  in particular,  there  are gaps in the compulsory 
insurance  coverage  of  vehicle  passengers  in  certain 
Member  Sûtes;  whereas,  to  protect  this  particularly 
vulnerable  category  of  potential  victims,  such  gaps 
should  be  filled; 

Unchanged 

Whereas it is necessary to remove uncertainty concerning 
the  application  of  the  first  indent  of  Article  3  (2)  of 
Directive  72/166/EEC;  whereas  all  compulsory  motor 
insurance  policies  must  cover  the  entire  territory  of  the 
Community and provide  under a single premium at least 
the cover  required  by  law  in  all  the  Member States; 

Wherea*s uncertainty concerning the 
application of the first  Indent of 
Article 3 (2) of Directive 72/166/EEC 
should be removed; whereas all compulsory 
motor  insurance policies must cover the 
entire territory of  the Community; 

Whereas, moreover, In the  Interests of 
the  Insured, every  Insurance policy 
should provide In each Member State under 
a single prem Imum  the cover  required by 
law  In that State or  the cover required 
by  law  in the Member State  In which the 
vehicle  is normally based where the 
latter  cover  Is greater; 

Whereas  Article  I  (4)  of  Directive  84/5/EEC  requires 
each  Member  State  to  set  up  or  authorize  a  body  to 
compensate the victims of  accidents caused by uninsured 
or  unidentified  vehicles;  whereas,  however,  the  said 
provision is without prejudice to the right of the Member 
Sûtes to regard compensation  by the body as subsidiary 
or  non-subsidiary; 

Unchanged 

Whereas,  however,  in  the  case  of  an  accident  caused  by 
an  uninsured  vehicle  the  victim  is  required  in  certain 
Member  States  to  esublish  that  the  party  responsible  is 
unable  or  unwilling  to  pay  compensation  before  he  can 
claim  on  the  body;  whereas  the  body  is  better  placed 
than 
the  party 
responsible;  whereas,  therefore,  the  body  should  not  be 
able  to  invoke  its  subsidiarily  in  this  case  but  should 
compensate  the  victim  in  the  first  insunce; 

take  action  against 

the  victim 

to 

Whereas,  in  the  event  of  a  dispute  between  the  body 
referred  to  above  and  a  civil  liability  insurer  as  to  which 
of  them  should  compensate  the  victim  of  an  accident, 
in  the  payment  of 
Member  States,  to  avoid  delay 
compensation  to  the  victim,  should  designate  either  the 
body  or  the  insurer  as  responsible  for  paying  compen 
sation  in  the  first  instance  pending  resolution  of  the 
dispute, 

Whereas,  however,  !n the case of an 
accident  caused  by an uninsured  vehicle 
the  victim  is required  In certain  Member 
States to prove  that  the party 
responsible  is unable or unwilling  to pay 
compensation  before  he can claim on the 
body;  whereas  the body  Is better  placed 
than the victim  to take  action  against 
the party  responsible;  whereas, 
therefore, the body  should  not be able to 
require,  that  the victim,  in order  to be 
compensated,  should  establish  that the 
party  responsible  is unable or unwilling 
to pay; 

Whereas,  In the event  of a dispute 
between  the body  referred  to above and a 
clviI "IiabiIity-insurer as to which of 
them  should  compensate  the victim of an 
accident,  Member  States, to avoid  delay 
In the payment  of compensation  to the 
victim,  should  ensure  that  either the 
body or the insurer  is designated as 
responsible  for paying  compensation in 
the  first  instance  pending  resolution of 
the  dispute; 

Whereas  the previous  two Directives on 
civil  liability  in respect  of automobiles 
should,  in view of all these 
considerations be supplemented  In a 
uniform  manner; 

Whereas  such an addition, which  would 
lead to greater  protection  for the 
insured and for the victims of accidents, 
would  facilitate  still  further the 
crossing of  internal  Community  frontiers 
and  hence the establishment and 
functioning of the internal  market; 
whereas a high  level  of consumer 
protection  should  accordingly be taken as 
a  basis; 

G 

-  4 

-

Whereas, under  the  terms of  Article 3c of 
the Treaty, account  should  be  taken of 
the effort  which must  be made by  certain 
economies which  show  differences  In 
development; whereas  certain  Member 
States  should,  therefore, be  granted 
transitional  arrangements so  that  certain 
provisions of  this Directive may  be 
implemented  progressively, 

HAS ADOPTED THIS DIRECTIVE: 

7 

-  D 

-

Article 1 

Article  1 

Without prejudice to the second  subparagraph of Article 
2  (1)  of  Directive  84/5/EEC,  the  insurance  referred  to 
in Article 3 (1) of Directive 72/166/EEC and in Article I 
(1)  of  Directive  84/5/EEC  shall  cover  liability  for 
personal injuries  to  all passengers,  other than the driver, 
arising  out  of  the  use of  a vehicle. 

Without prejudice to  the second  subparagraph  of Article 
2  (1)  of  Directive  84/5/EEC,  the  insurance  referred  to 
in Article 3 (1) of Directive  72/166/EEC 

..  shall  cover  liability  for 
personal  injuries  to  all passengers,  other  than  the driver, 
arising  out of  the  use  of  a vehicle. 

For  the  purposes  of  this  Directive  the  meaning  of  the 
term  'vehicle'  is  as  defined  in  Article  1  of  Directive 
72/166/EEC 

For  the  purposes  of  this  Directive  the  meaning  of  the 
term  'vehicle'  is  as  defined  in  Article  1  of  Directive 
72/166/EEC. 

Article 2 

Member  States  shall  take  the  necessary  steps  to  ensure 
that  all  policies  of  compulsory  insurance  covering  civil 
iiability  in  respect  of  the  use  of vehicles: 
—  cover,  on  the  basis  of  a  single  premium,  the  entire 

territory of the Community; and 

—  provide,  on  the  basis of  the same single  premium, in 
addition to the cover required by law in the Member 
State in which the vehicle  is normally based,  at least 
the  cover  required  by  law  in  each  of  the  other 
Member Stites. 

Article  2 

Member  States  sffall  take  the necessary 
steps  to ensure  that  all  policies of 
compulsory  insurance  covering  civil 
liability  in respect  of the use of 
vehicles: 

-  cover, on the basis of a  single 

premium,  the entire  territory of the 
Community; and 

-  provide, on the basis of  the same 

single premium,  and  in each  Member 
State, the cover  required  by  that 
State's  law or  the cover' required by 
the  law in the Member  State  in which 
the  vehicle  Is normally  based  where 
that  latter  cover  Is greater. 

Article 3 

The  following  sentence  shall  be  added  to  the  first 
subparagraph  of  Article  1  (4)  of  Council  Directive 
84/5/EEC: 

'However, Member Sûtes may not allow the body to 
make  the  payment of  compensation  conditional  on 
the  victim's  esubtishing  in  any  way  that  the  person 
responsible is unable or unwilling to pay*. 

Unchanged 

1 

Article 4 

For the  case  where  there  is  a  dispute  between  the  body 
referred  to  in  Article  1 (4)  of  Directive  84/5/EEC  and 
the civil liability insurer as to which must compensate the 
victim,  Member  Sûtes  shall  designate  one  of  these 
parties  as  responsible  for  compensating  the  victim 
without  delay  in  the  first  insunce.  If  it  is  ultimately 
decided  that the other party should  have paid all or part 
of  the  compensation  it  shall  reimburse  accordingly  the 
party which  has paid. 

Article  5 

Member  States  shall  adopt  the  provisions  necessary  to 
comply  with  this  Directive  not  later  than  31  December 
inform  the  Commission 
1992.  They  shall  forthwith 
thereof. 

-  6  -

Article 4 

In the event of a dispute  between the 
body  referred  to In Article  1(4) of 
Council  Directive  84/5/EEC and the civil 
liability  insurer  as to which  must 
compensate  the victim, the Member  States 
shall  take the appropriate measures to 
ensure  that one of these  parties is 
designated  as being,  required  In the 
first  instance  to compensate  the victim 
without  delay. 

If  It is ultimately  decided  that the 
other  party  should  have  paid  all or part 
of  the compensation,  that  other  party 
sha11  reimburse  accordingly  the party 
which has paid. 

Article 5 

1. Member  States  shall  take the measures 
necessary  to comply  with  this  Directive 
not  later  than 31 December  1992.  They 
shall  forthwith  inform the Commission 
thereof. 

2. By way of exception  from  paragraph 1: 

-  the Hellenic  Republic, the Kingdom of 
Spain and the Portuguese  Republic  have 
until  31 December  1995 to comply  with 
the  provisions of Articles  1 and 2, 
second  Indent, of this  Directive; 

-  Ireland  shall  have until  31 December 
1998 to comply  with the provisions of 
Article  1 as regards  the pillion 
passengers of motorcycles and until 
31  December  1995 to comply  with the 
provisions of Article 1 as regards 
other  vehicles and to comply  with 
Article 2, second  Indent. 

Article 6 

This  Directive  is addressed  to  the  Member  Sûtes. 

Unchanged 

ISSN 0254-1475 

COM (89) 625 final 

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