Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251(2) of the EC Treaty concerning the common position of the Council on the adoption of a European Parliament and Council Directive amending Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC, 90/232/EEC and Directive 2000/26/EC of the European Parliament and of the Council on insurance against civil liability in respect of the use of motor vehicles (Fifth Motor Insurance Directive)
Date: 2004-04-30
Institutions: European Commission
Subjects: civil liability, free movement of goods, free movement of persons, indemnification, motor vehicle insurance, transport accident

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 30.4.2004 
COM(2004) 351 final 

2002/0124 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251(2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a European Parliament and Council 
Directive amending Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC, 90/232/EEC 
and Directive 2000/26/EC of the European Parliament and of the Council on insurance 
against civil liability in respect of the use of motor vehicles 
(Fifth Motor Insurance Directive) 

EN 

   EN 

 
 
 
  
 
 
  
  
2002/0124 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251(2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a European Parliament and Council 
Directive amending Council Directives 72/166/EEC, 84/5/EEC, 88/357/EEC, 90/232/EEC 
and Directive 2000/26/EC of the European Parliament and of the Council on insurance 
against civil liability in respect of the use of motor vehicles 
(Fifth Motor Insurance Directive) 

1. 

BACKGROUND 

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On 7 June 2002 the Commission adopted a Proposal for a Directive 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  vehicles1.  The  Proposal  was  submitted  to  the  Council  and  to  the 
European Parliament on the same date.  

At  its  plenary  session  on  26/27 February 20032  Economic  and  Social 
Committee delivered a favourable opinion on the Proposal with some reserves. 

The  European  Parliament  adopted  a  legislative  resolution3  embodying  its 
opinion  on 
its  plenary  session  on 
22 October 2003. 

the  Commission's  Proposal  at 

On  26 April  2004  the  Council  adopted  the  common  position4  which  is  the 
object of this communication. 

2. 

OBJECT OF THE PROPOSAL 

The Proposal aims to revise the existing Motor Insurance Directives in order to: 

(1) 

(2) 

update  and  improve  the  protection  of  victims  of  motor  vehicle  accidents  by 
compulsory insurance; 

fill  gaps  and  clarify  certain  provisions  of  the  Directives,  thereby  ensuring 
increased  convergence  as  regards  their  interpretation  and  application  by  the 
Member States; 

1 
2 
3 
4 

COM(2002) 244 final – 2002/0124 (COD), OJ C 227 E, 24.9.2002, p. 387-392. 
OJ C 95, 23.4.2003, p. 45-47. 
PE A5-0346/03/fin. Rapporteur W. Rothley. 
OJ……….. 

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(3) 

provide for solutions to problems which arise frequently in order to create a 
more efficient single market in motor insurance. 

3. 

COMMENTS ON THE COMMON POSITION 

3.1. 

General considerations 

3.1.1.  The  common  position  adopted  by  the  Council  by  qualified  majority  retains  indeed 
the  essence  of  the  Commission’s  Proposal  (hereinafter  "the  Proposal").  It  contains 
indeed some improvements in certain aspects. First, it incorporates, fully or in their 
spirit, all the Parliament’s amendments which were accepted by the Commission at 
the Plenary. Second, it meets in some important cases the concern expressed in other 
Parliament’s amendments and contains solutions in the same direction, even if they 
do not fully coincide with such amendments. Finally, the common position also deals 
with some technical issues which were not raised by Parliament.  

3.1.2.  The  main  changes  introduced  in  the  common  position  in  comparison  with  the 
Proposal are commented in detail below. They are classified in two main categories: 
changes which respond to Parliament’s amendments and other changes introduced by 
Council.  

3.2. 

Changes in the common position responding to Parliament's amendments 

3.2.1.  The  common  position  takes  account,  fully  or  in  their  spirit,  of  the  amendments 
adopted  by  Parliament  in  its  first  reading  and  accepted  by  the  Commission.  These 
amendments are as follows:  

•  Amendments  No. 5  and 20  (Claims  representatives):  The  common  position 
(Recital 22  and  Article 4)  reflects  the  content  of  both  Parliament’s  amendments. 
They  aim  to  avoid  that  the  extension  to  all  accidents  of  the  insurance 
undertakings’ obligation to appoint a claims representative in each Member State 
–  as  provided  for 
the  current 
Green Card Bureaux’  system  for  the  settlement  of  accidents  and  hinder  its 
functioning.  

the  Proposal  –  may  overlap  with 

in 

•  Amendment No. 7 and 21 (Consistency between the 4th Motor Insurance Directive 
and Council Regulation no.°44/2001): The common position, which takes account 
of these amendments, modifies Article 5 of the Proposal and introduces a change 
in  Article 4(8)  of  the  Fourth Motor  Insurance  Directive.  It  adds  in  Article 4(8), 
together with the reference to the "Brussels Convention of 27 September 1968 on 
jurisdiction and the enforcement of judgments in civil and commercial matters", a 
new  mention  to  the  Council  Regulation  no. 44/2001  of  22 December 2000.  This 
Regulation,  which  has  replaced  the  Brussels  Convention  with  regard  to  all  the 
Member States  (except  Denmark)  was  adopted  after  the  Fourth Motor  Insurance 
Directive and was not therefore mentioned in this Directive. The reference to both 
legal instruments, Convention and Regulation, is now therefore needed. 

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•  Amendment  No. 14:  (Personal  injuries  caused  by  unidentified  vehicles):  The 
common position (Article 2) modifies the Proposal and takes account of the spirit 
of  this  amendment.  The  common  position  provides  that  the  conditions  for  the 
personal  injuries  to  be  considered  significant  shall  be  determined  in  accordance 
with the Member States legislation and specifies as recommended by Parliament 
that  Member States  may  take  into  account  in  this  regard  whether  the  injury  has 
required “hospital care”.  

•  Amendment No. 18 (Claims statements): As pursued by this amendment Article 4 
of  the  common  position  ensures  that  the  claim  statement  should  be  provided  by 
the insurance undertaking at any time on the policyholder’s request. 

3.2.2.  The common position also contains other changes which meet the concern expressed 
in  other  Parliament’s  amendments  and  go  therefore  in  their  same  direction,  even  if 
the solution retained by the Council does not fully coincide with such amendments: 

•  Amendments  No. 25,  27 and 28  (Minimum  insurance  amounts):  The  common 
position  (Article 2)  takes  account  to  a  large  extent  of  the  Parliament’s  requests 
concerning the increase of the minimum amounts of insurance cover. Indeed the 
minimum amount for personal injuries is raised to five millions euros per accident 
as  requested by Parliament although  the  minimum  amount  for  material  damages 
has  been  fixed  in  one  million  euros  per  accident  instead  of  two  millions  euros 
requested. Furthermore the Common Position grants Member States the option to 
fix a minimum amount of one million euros per victim. The Parliament’s request 
of a transitional period of five years has been retained in the Common Position. 

•  Amendments  No. 11  and 26  (Derogation  from  the  obligation  of  insurance  in 
favour  of  certain  special  vehicles:  The  First Motor  Insurance  Directive  permits 
Member States to apply derogation from the obligation of insurance in favour of 
certain  special  categories  of  vehicles.  The  Proposal  intended  to  eliminate  such 
derogation because, after Schengen, if one of these vehicles crosses the border it 
is not possible to guarantee the other Member States’ right to require on entry the 
possession  of  a  valid  green  card  or  a  frontier  insurance  to  compensate  potential 
victims  as  provided  for  in  the  Directive.  However,  the  common  position 
[Articles 1(3)(b)  and  5(2)]  has  kept  this  derogation  following  Parliament 
amendments 11  and 26,  but  introducing  a  mechanism  to  ensure  compensation  to 
any  victim  of  accidents  caused  by  these  vehicles  either  in  the  Member State  in 
which  they  are  based  or  in  any  other  Member State.  This  derogation  may  be 
revised after five years time depending on the experience of application. Finally, 
in order to take account of this change, the common position deletes point 2(ii) of 
Article 5(1)  of  the  Fourth Motor  Insurance  Directive,  but  keeps  point 5(ii)  of 
Article 5(1)  of  the  same  Directive.  In  short:  the  common  position  on  this  point 
follows  the  spirit  of  the  Parliament’s  request  and  meets  at  the  same  time  the 
Proposal’s  concern  to  provide  full  protection  to  any  victim  caused  by  these 
vehicles. 

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3.3. 

Other changes introduced by the Council in the common position 

The  common  position  has  also  introduced  the  following  changes  which  were  not 
requested by Parliament: 

•  Compensation  to  victims  of  accidents  caused  by  vehicles  exempted  from  the 
insurance  obligation  according  to  Article 4(a)  of  the  First Motor  Insurance 
Directive: The common position [Article 1(3)(a)] ensures that victims of accidents 
caused  by  vehicles  exempted  from  the  insurance  obligation  according  to 
Article 4(a) of the First Motor Insurance Directive in the Member State in which 
they  are  normally  based  shall  be  duly  compensated  by  the  authorities  or  bodies 
designated  by  the  Member State.  The  First Motor  Directive  only  ensured 
compensation  to  victims  caused  abroad  by  such  vehicles  but  not  to  victims  of 
accidents  in  the  Member State  of  registration.  The  common  position  provides 
furthermore that the Commission shall publish the categories of vehicles affected 
by  this  derogation  as  well  as  the  authorities  or  bodies  responsible  for 
compensation. These changes reinforce the protection of victims. 

•  Territorial  scope  of  the  Motor  Insurance  Directives:  In  order  to  clarify  the 
territorial  scope  of  application  of  the  Motor  Insurance  Directives  in  accordance 
with  Article 299  of  the  Treaty,  the  common  position  [Article 1(4)]  deletes  the 
references  to  “the  non-European  territory”  of  the  Member States  in  Articles 6 
and 7(1) of Directive 72/166/EEC. 

•  Pedestrians and cyclists The common position [Article 4(2)] does not fully follow 
the  Proposal  with  regard  to  the  protection  of  pedestrians  and  cyclists.  However, 
the  new  wording  of  this  provision  stresses  that  the  compulsory  insurance  of  the 
motor  vehicle  involved  must  cover  personal  and  property  damages  suffered  by 
pedestrians, cyclists and other non-motorised users of the roads to the extent they 
are  entitled  to  compensation  according  to  national  legislation  on  civil  liability. 
This provision goes along the lines of a draft amendment that was considered at 
the EP Legal Affairs Committee, but was not finally retained. 

4. 

CONCLUSIONS 

The Commission takes the view that the common position retains the key elements of 
the Commission’s Proposal as well as those of the European Parliament amendments 
that were accepted by the Commission. The Commission can commend this common 
position to the European Parliament. 

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