Proposal for a Directive of the European Parliament and of the Council amending Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC, 90/232/EEC and Directive 2000/26/EC on insurance against civil liability in respect of the use of motor vehicles
Date: 2002-06-07
Institutions: European Commission
Subjects: civil liability, free movement of goods, free movement of persons, indemnification, motor vehicle insurance, transport accident

24.9.2002

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Official Journal of the European Communities

C 227 E/387

Proposal for a Directive of the European Parliament and of the Council amending Council
Directives 72/166/EEC, 84/5/EEC, 88/357/EEC, 90/232/EEC and Directive 2000/26/EC on
insurance against civil liability in respect of the use of motor vehicles

(2002/C 227 E/18)

(Text with EEA relevance)

COM(2002) 244 final — 2002/0124(COD)

(Submitted by the Commission on 7 June 2002)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular the first and third sentences of
Article 47(2), Article 55 and Article 95(1) thereof,

Having regard to the proposal from the Commission,

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

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

Whereas:

(1) Insurance against civil

liability in respect of the use of
motor vehicles (motor insurance) is of special importance
for European citizens, whether they are policyholders or
victims of an accident.
It is also a major concern for
the bulk of
insurance undertakings as
non-life insurance business in the Community. Motor
insurance also has an impact on the free movement of
persons and vehicles.
should therefore be a key
objective of Community action in the field of financial
services to reinforce and consolidate the single insurance
market in motor insurance.

it constitutes

It

(2) Very significant advances in this direction have already
been achieved by Council Directive 72/166/EEC of
24 April 1972 on the approximation of
the laws of
Member States relating to insurance against civil liability
the use of motor vehicles, and to the
in respect of
the obligation to insure against such
enforcement of
liability (1), by 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 (2), by
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 (3) and by Directive 2000/26/EC of

(1) OJ L 103, 2.5.1972, p. 1, as last amended by Directive 84/5/EEC

(OJ L 8, 11.1.1984, p. 17).

(2) OJ L 8, 11.1.1984, p. 17, as last amended by Directive 90/232/EEC

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

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

the European Parliament and of the Council of 16 May
2000 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 Council
Directives 73/239/EEC and 88/357/EEC (Fourth motor
insurance Directive) (4).

(3) The Community system of motor insurance needs to be
updated and improved. This need has been confirmed by
the consultation conducted with the industry, consumers
and victims' associations.

(4) In order to exclude any possible misinterpretation of the
current provisions of Directive 72/166/EEC and to make
it easier to obtain insurance cover for vehicles bearing
temporary plates, the definition of the territory in which
the vehicle is normally based should refer to the territory
of the State of which the vehicle bears a registration plate,
irrespective of whether such a plate is permanent or
temporary.

(5) In accordance with Directive 72/166/EEC,

vehicles
illegal plates are considered to be
bearing false or
normally based in the territory of
the Member State
that issued the plates in question. This rule often means
that national bureaux are obliged to deal with the
economic consequences of accidents which do not have
any connection with the Member State where they are
established. Without altering the general criterion of the
registration plate to determine the territory in which the
vehicle is normally based, a special
rule should be
provided in the case of an accident caused by a vehicle
without a registration plate or bearing a registration plate
which does not correspond or no longer corresponds to
the vehicle.
In this case and for the sole purpose of
settling the claim, the territory in which the vehicle is
normally based should be the territory in which the
accident took place.

(6) In order to facilitate the interpretation and application of
the term ‘random checks’
in Directive 72/166/EEC, the
relevant provision should be clarified. The prohibition
of systematic checks on motor insurance should apply
to vehicles normally based in the territory of another
Member State as well as to vehicles normally based in
the territory of a third country but entering from the
territory of another Member State. Only non-systematic
checks which are not discriminatory and are carried out
as part of a police control not aimed exclusively at
insurance verification may be permitted.

(4) OJ L 181, 20.7.2000, p. 65.

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(7) Directive 72/166/EEC permits Member States to derogate
in certain cases from the general obligation to take out
compulsory motor vehicle insurance.
In some of these
cases, Member States must ensure that compensation is
paid in respect of any loss or injury caused in the territory
of another Member State. Such a derogation, which does
not jeopardise protection of the victims, should be main-
tained.
In other cases the Member State applying the
derogation is not obliged to pay compensation to the
victim of an accident occurring abroad so long as other
Member States are allowed to require, at the entry into
their territory, a valid green card or a frontier insurance
elimination of border
contract. However,
controls within the Community,
compensation for
victims of accidents caused abroad by such non-insured
vehicles has ceased to be guaranteed. Derogation in those
cases, as provided for in Directive 72/166/EEC, should
therefore no longer be permitted. The corresponding
in Directive 2000/26/EC should also be
provisions
deleted.

since

the

certain minimum amounts

constitutes
in ensuring the protection of

(8) Member States' obligations to guarantee insurance cover
an
beyond
important element
the
victims. The minimum amounts provided for by
Directive 84/5/EEC should not only be updated to take
account of inflation but should be increased in real terms
to improve the protection of victims. Moreover,
the
current overall minimum amount per claim for personal
injuries in the case of more than one victim, as well as the
injuries and damage to
combined amount for personal
property, which reduce the effective insurance cover of
victims in certain accidents, should be abolished.

(9) In order to ensure that the minimum amount of cover is
not eroded over time, a periodic review clause should be
introduced using as a benchmark the European Index of
Consumer Prices (EICP) published by Eurostat, as provided
for in Council Regulation (EC) No 2494/95 of 23 October
1995 concerning harmonized indices of
consumer
prices (1). The procedural rules governing such a review
need to be established.

(10) The provision in Directive 84/5/EEC allowing Member
States,
in the interest of preventing fraud, to limit or
exclude payments by the compensation body in the case
of damage to property by an unidentified vehicle is liable
to impede legitimate compensation of victims in some
cases. The option to limit or exclude compensation
in addition to damage to
should not apply where,
property, significant personal
injuries have been caused
by the same accident and therefore the risk of fraud is
injuries
negligible. The meaning of significant personal
should be determined by each Member State's national
legislation.

excesses

(11) At present, an option contained in Directive 84/5/EEC
allows Member States to authorise, up to a specified
ceiling,
victim would be
for which the
responsible in the event of damage to property caused
by uninsured vehicles. That option unjustly reduces the
protection of victims and creates discrimination with
respect to victims of other accidents. It should therefore
no longer be permitted.

(12) Second Council Directive 88/357/EEC of 22 June 1988
on the coordination of
laws, regulations and adminis-
trative provisions relating to direct insurance other than
life assurance and laying down provisions to facilitate the
effective exercise of
freedom to provide services and
amending Directive 73/239/EEC (2), should be amended
in order to permit branches of insurance undertakings
to become
to motor
representatives with respect
insurance activities, as already happens with respect to
insurance services other than motor insurance.

the accident. The passenger

(13) The inclusion within the insurance cover of any passenger
in the vehicle is a major achievement of the existing
legislation. This objective would be placed in jeopardy if
national
legislation excluded passengers from insurance
cover because they knew or should have known that
the driver of
the vehicle was under the influence of
alcohol or of any other intoxicating agent at the time
is not usually in a
of
position to assess the intoxication level of
the driver
properly. The objective of discouraging persons from
driving whilst under the influence of intoxicating agents
is not achieved by reducing the insurance cover for
passengers who are victims of motor vehicle accidents.
Cover of these passengers under the vehicle's compulsory
insurance does not prejudge any hypothetical
motor
liability they might have
to the
the level of any
applicable national
award of damages in a specific accident.

incurred pursuant

legislation, nor

In some Member

(14) Insurance cover for pedestrians and cyclists in the case of
accidents involving a motor vehicle varies a great deal
within the Community.
States
pedestrians and cyclists are not covered by the vehicle's
insurance unless some form of driver liability can be
established.
In other Member States pedestrians and
cyclists are covered by such insurance because they are
usually the weakest party in any accident. In order to
ensured that
reduce
pedestrians and cyclists are covered by the compulsory
insurance of the vehicle involved in the accident,
irres-
pective of whether the driver is at fault. This cover under
the vehicle's compulsory motor
insurance does not
prejudge the civil liability of the pedestrian or cyclist or
the level of awards for damages in a specific accident,
under national legislation.

such disparity,

should be

it

(1) OJ L 257, 27.10.1995, p. 1.

(2) OJ L 172, 4.7.1988, p. 1, as last amended by Directive 2000/26/EC.

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(15) Some

insert

according

90/232/EEC,

insurance undertakings

into insurance
policies clauses to the effect that the contract will be
cancelled if
the vehicle remains outside the Member
State of registration for longer than a specified period.
This practice is in conflict with the principle set out in
Directive
the
compulsory motor insurance should cover on the basis
the
of
Community.
the
insurance cover should remain valid during the whole
term of the contract, irrespective of whether the vehicle
remains in another Member State for a particular period,
without prejudice to the obligations under Member States'
national
to the registration of
vehicles.

territory of
It should therefore be specified that

legislation with respect

single premium the

to which

entire

a

for

(16) Steps should be taken to make it easier for consumers to
obtain insurance cover for vehicles despatched from one
Member State into another,
the period between
acceptance of delivery by the purchaser and registration
of
the vehicle in the Member State of destination. A
temporary derogation from the general rule determining
the Member State where the risk is situated should be
introduced. For a period of thirty days after acceptance
of delivery by the purchaser, the Member State of desti-
nation, and not the Member State of registration, should
be regarded as the Member State where the risk is
situated.

(17) The person wishing to take out a new motor insurance
contract with another insurer should be able to justify his
accident and claims record under the old contract. Upon
termination of the contract, the insurance undertaking
should provide
statement
relating to claims or the absence of claims during the
the contract within the preceding five years,
term of
without prejudice to the right of
the parties to an
insurance contract to establish the contract premium.

the policyholder with a

(18) In order to ensure due protection for the victims of motor
should not permit

vehicle accidents, Member States
excesses to be relied on against an injured party.

(19) The right to invoke the insurance contract and to claim
against
the insurance undertaking directly is of great
importance for the protection of the victim of any motor-
vehicle accident. Directive 2000/26/EC already provides
victims of accidents occurring in a Member State other
than the Member State of residence of the injured party,
which are caused by the use of vehicles insured and
normally based in a Member State, with a right of
direct action against the insurance undertaking covering
the responsible person against civil liability. In order to
facilitate an efficient and speedy settlement of claims and
to avoid as far as possible costly legal proceedings, this
right should be extended to victims of any motor vehicle
accident.

(20) To enhance the protection of any victim of a motor
vehicle accident, the ‘reasoned offer’ procedure provided

for in Directive 2000/26/EC should be extended to any
kind of motor vehicle accident. With a view to ensuring
the proper functioning of this mechanism without dupli-
cating the structure required by that Directive,
the
representative appointed by the insurance undertaking
for the specific purposes of that Directive should also
be allowed to take responsibility for handling any motor
vehicle accident. That procedure is compatible with the
system of Green Card Bureaux laid down in Directive
72/166/EEC for the settlement of claims in respect of
accidents caused by vehicles normally based in the
territory of another Member State.

the

information centres

(21) In order to make it easier for the injured party to seek
compensation,
set up in
accordance with Directive 2000/26/EC should not be
confined to providing
the
accidents covered by that Directive but should be able
to provide the same kind of information for any motor
vehicle accident.

information concerning

(22) Directives

84/5/EEC,
72/166/EEC,
90/232/EEC and 2000/26/EC should
amended accordingly,

88/357/EEC,
be
therefore

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Amendments to Directive 72/166/EEC

Directive 72/166/EEC is amended as follows:

1. In Article 1, paragraph 4 is amended as follows:

(a) The first indent is replaced by the following:

‘— the territory of the State of which the vehicle bears
a registration plate, irrespective of whether the plate
is permanent or temporary; or’;

(b) The following indent is added:

‘— in cases where vehicles do not bear any registration
plate or bear a registration plate which does not
to the
correspond or no longer
vehicle and have been involved in an accident, the
territory of the State in which the accident took
place,
for the purpose of settling the claim as
provided for in the first indent of Article 2(2);’.

corresponds

2. In Article 2, paragraph 1 is replaced by the following:

‘1. Member States shall refrain from making checks on
insurance against civil
liability in respect of vehicles
normally based in the territory of another Member State
and in respect of vehicles normally based in the territory
of a third country entering their territory from the territory
of another Member State.

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they may carry out non-systematic checks on
However,
insurance provided that they are not discriminatory and
are carried out as part of a police control which is not
aimed exclusively at insurance verification.’

3. In Article 4, point (b) is deleted.

Article 2

Amendments to Directive 84/5/EEC

Article 1 of Directive 84/5/EEC is replaced by the following:

‘Article 1

1.
The insurance referred to in Article 3(1) of Directive
72/166/EEC shall cover compulsorily both damage to
property and personal injuries.

2. Without prejudice to any higher guarantees which
Member States may lay down, each Member State shall
require insurance to be compulsory at least in respect of
the following amounts:

(a)

in the case of personal
victim;

injury, EUR 1 000 000 per

(b) in the case of damage to property, EUR 500 000 per

claim, whatever the number of victims.

3.
The amounts referred to in paragraph 2 shall be
reviewed every five years in order to take account of
in the European Index of Consumer Prices
changes
(EICP),
(EC)
Council
out
as
No 2494/95 (*). The first review shall
take place five
years from the entry into force of Directive 2003/. . ./EC.

Regulation

set

in

insurers or

responsible for

the
body and the person or persons
accident and other
security bodies
required to compensate the victim in respect of the same
accident. However, Member States may not allow the body
to make the payment of the compensation conditional on
the victim establishing in any way that the person liable is
unable or refuses to pay.

social

The victim may in any case apply directly to the body
5.
which, on the basis of information provided at its request
by the victim, shall be obliged to give him a reasoned reply
regarding the payment of any compensation.

Member States may, however, exclude the payment of
compensation by that body in respect of persons who
voluntarily entered the vehicle which caused the damage
or injury when the body can prove that they knew it was
uninsured.

6. Member States may limit or exclude the payment of
compensation by the body in the event of damage to
property by an unidentified vehicle.

That option shall not apply where, as a result of the same
accident,
suffered significant personal
injuries.

the victim has

The conditions for the personal injuries to be considered
significant shall be determined by each Member State's
legislation.

7.
Each Member State shall apply its laws, regulations
and administrative provisions to the payment of compen-
sation by this body, without prejudice to any other practice
which is more favourable to the victim.

___________
(*) OJ L 257, 27.10.1995, p. 1.’

The amounts shall be adjusted automatically. Such amounts
shall be increased by the percentage change indicated by
the EICP for the relevant period, that is to say, the five
years immediately preceding the review, and rounded up
to a multiple of EUR 10 000.

The Commission shall communicate the adjusted amounts
to the European Parliament and the Council and shall
ensure their publication in the Official
the
European Communities.

Journal of

4.
Each Member State shall set up or authorise a body
with the task of providing compensation, at least up to the
limits of the insurance obligation for damage to property or
personal
injuries caused by an unidentified vehicle or a
vehicle for which the insurance obligation provided for in
paragraph 1 has not been satisfied.

The first subparagraph 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

Article 3

Amendments to Directive 88/357/EEC

The second sentence in the fourth subparagraph of Article
12a(4) of Directive 88/357/EEC is deleted.

Article 4

Amendments to Directive 90/232/EEC

Directive 90/232/EEC is amended as follows:

1. In Article 1, the following paragraph is inserted between the

first and second paragraphs:

‘A passenger shall not be excluded from insurance cover on
the basis that he knew or should have known that the
driver of the vehicle was under the influence of alcohol
or of any other intoxicating agent at
the time of an
accident.’

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2. The following Article 1a is inserted:

Article 4d

‘Article 1a

The insurance referred to in Article 3(1) of Directive
72/166/EEC shall
suffered by
pedestrians and cyclists as a consequence of an accident
in which a motor vehicle is involved, irrespective whether
the driver is at fault.’

cover personal

injuries

3. In Article 2, the first indent is replaced by the following:

‘— cover, on the basis of a single premium and during the
whole term of the contract, the entire territory of the
Community, including for any period when the vehicle
remains in other Member States during the term of the
contract; and’.

4. The following Articles 4a to 4f are inserted:

‘Article 4a

1.
By way of derogation from the second indent of
Article 2(d) of Directive 88/357/EEC, where a vehicle is
the
despatched from one Member State
Member State where the risk is situated shall be considered
to be the Member State of destination immediately upon
acceptance of delivery by the purchaser for a period of
thirty days, even though the vehicle has not formally been
registered in the Member State of destination.

to another,

2.
In the event that the vehicle is involved in an accident
during the period mentioned in paragraph 1 while being
uninsured, the body referred to in Article 1(4) of Directive
84/5/EEC in the Member State of destination shall be liable
for the compensation provided for in that Article.

Article 4b

Member States shall ensure that, within fifteen days of the
termination of an insurance contract concerning a vehicle
covered by insurance as referred to in Article 3(1) of
Directive 72/166/EEC, the policyholder shall be provided
with a statement relating to the claims or the absence of
claims involving the vehicle during the preceding five years
of the contractual relationship.

Article 4c

Member States shall ensure that injured parties to accidents
caused by a vehicle covered by insurance as referred in
Article 3(1) of Directive 72/166/EEC enjoy a direct right
of action against the insurance undertaking covering the
responsible person against civil liability.

Article 4e

1. Member States shall ensure that
the representative
appointed by an insurance undertaking in accordance with
Article 4(1) to (5) of Directive 2000/26/EC of the European
Parliament and of the Council (*), without prejudice to his
obligations under that Directive, may also be responsible for
handling and settling the claims arising from any accident
caused in the Member State where he is appointed by a
vehicle covered by compulsory insurance as referred in
Article 3(1) of Directive 72/166/EEC and underwritten by
the insurance undertaking he represents.

2. Member States shall establish the procedure provided
for
the
in Article 4(6) of Directive 2000/26/EC for
settlement of claims arising from any accident caused by a
vehicle covered by insurance as referred in Article 3(1) of
Directive 72/166/EEC.

Paragraphs 1 and 2 are without prejudice to the
3.
in Article 2(2) of
system of bureaux provided for
Directive 72/166/EEC for
in
respect of accidents caused by vehicles normally based in
the territory of another Member State, whether or not such
vehicles are insured.

the settlement of claims

Article 4f

Member States shall ensure that, without prejudice to their
obligations under that Directive,
the information centres
established or approved in accordance with Article 5 of
Directive 2000/26/EC, provide the information specified in
that Article to any party to an accident who has suffered
damage to property or personal injuries caused by a vehicle
covered by insurance as referred to in Article 3(1) of
Directive 72/166/EEC.
___________
(*) OJ L 181, 20.7.2000, p. 65.’

Article 5

Amendments to Directive 2000/26/EC

In Article 5(1) of Directive 2000/26/EC, point (a) is amended
as follows:

Excesses shall not be relied on against the injured party to
an accident as far as the insurance referred to in Article 3(1)
of Directive 72/166/EEC is concerned.

1. point 2(ii) is deleted;

2. point 5(ii) is deleted.

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Article 6

Implementation

2. 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.

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 31 December 2004 at
the latest. They shall
forthwith inform the Commission thereof.

Article 7

Entry into force

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

When Member States adopt those provisions, they shall contain
a reference to this Directive or be accompanied by such a
their official publication.
reference on the occasion of
Member States shall determine how such reference is to be
made.

Article 8

Addressees

This Directive is addressed to the Member States.