The European added value of EU legislative action on limitation periods for road traffic accidents : study.
Date: 2016-08-01
Institutions: Directorate-General for Parliamentary Research Services
Subjects: insurance contract, insurance indemnity, motor vehicle insurance, road safety, road traffic, road transport, third-party insurance, transport accident

Limitation periods 
for road traffic 
accidents 

European Added Value 
Assessment 

accompanying the European 
Parliament's legislative 
own-initiative report 
(Rapporteur: Pavel 
Svoboda) 

STUDY 

EPRS | European Parliamentary Research Service 
Author: Christian Salm  
European Added Value Unit 
PE 581.386 - July 2016 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The European added value of EU legislative action on limitation 
periods for road traffic accidents 

Study 

In accordance with Article 225 of the Treaty on the Functioning of the European Union, the European 
Parliament has the right to request that the European Commission take legislative action. On 23 April 
2015,  the  Conference  of  Presidents  of  the  European  Parliament  authorised  its  Committee  on  Legal 
Affairs (JURI) to draft a legislative initiative report on limitation periods for traffic accidents.  

All  European  Parliament  legislative  initiative  reports  must  automatically  be  accompanied  by  a 
detailed  European  Added  Value  Assessment  (EAVA).  Accordingly,  the  JURI  Committee  asked  the 
Directorate-General for  Parliamentary Research Services (EPRS) to prepare an EAVA to support the 
legislative initiative report on limitation periods for traffic accidents, 2015/2087 (INI), to be prepared 
by Pavel Svoboda. 

The  purpose  of  the  European  Added  Value  Assessment  is  to  support  a  legislative  initiative  of  the 
European  Parliament  by  providing  a  scientifically-based  evaluation  and  assessment  of  the  potential 
added  value  of  taking  legislative  action  at  EU  level.  In  accordance  with  Article  10  of  the 
Interinstitutional Agreement on Better Law-Making, the European Commission should respond to a 
request  for  proposals  for  Union  acts  made  by  the  European  Parliament  by  adopting  a  specific 
communication. If the Commission decides not to submit a proposal, it should inform the European 
Parliament  of  the  detailed  reasons  therefore,  including  a  response  to  the  analysis  on  the  potential 
European Added Value of the requested measure.  

This analysis has been drawn up by the European Added Value Unit within DG EPRS and builds on 
external expert research carried out  at its request by Dr Jenny Papettas, Birmingham, and Dr Marco 
Bona, Turin.  

The  assessment  presents  a  qualitative  analysis  of  the  existing  legal  framework  and  quantitative 
estimates  on  the  possible  additional  value  of  taking  legislative  action  at  EU  level  in  relation  to 
limitation periods for road traffic accidents.  

The expert research paper by Papettas and Bona is presented in full in Annex I.  

PE 581.386 

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This document was requested by the European Parliament's Committee on Legal Affairs. 

AUTHOR 
Christian Salm 

ABOUT THE PUBLISHER 
This  paper  has  been  drawn  up  by  the  European  Added  Value  Unit  of  the  Directorate  for  Impact 
Assessment and European Added Value, within the  Directorate-General for Parliamentary Research 
Services of the Secretariat of the European Parliament. 
To contact the Unit, please e-mail EPRS-EuropeanAddedValueUnit@ep.europa.eu 

LINGUISTIC VERSIONS 
Original: [EN] 

Manuscript completed in July 2016. 
© European Union, 2016. 

This document is available on the internet at: http://www.europarl.europa.eu/thinktank 

DISCLAIMER 
The  opinions  expressed  in  this  document  are  the  sole  responsibility  of  the  author  and  do  not 
necessarily represent the official position of the European Parliament. 
Reproduction  and  translation  for  non-commercial  purposes  are  authorised,  provided  the  source  is 
acknowledged and the publisher is given prior notice and sent a copy. 

PE  581.386 
ISBN 978-92-823-9547-9 
doi:10.2861/089439 
QA-04-16-567-EN-N 

PE 581.386 

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Limitation Periods for Traffic Accidents  

Table of Contents 

Executive summary ....................................................................................................................... 4 
1.  The  current  legal  system  for  limitation  periods  in  cases  of  cross-border  road  traffic 
accidents and its weaknesses ....................................................................................................... 7 
2. The costs of not having European Union-wide harmonised limitation periods ............... 9 
3. The EU policy context ............................................................................................................. 10 
4. Possible EU legislative action ................................................................................................. 12 
5. European added value ............................................................................................................ 13 
Recommendation ......................................................................................................................... 13 

Annex I: EU Harmonisation of Limitation Periods for Claims Arising out of Cross-Border 
Road Traffic Accidents ............................................................................................................... 14 

PE 581.386 

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European Added Value Assessment 

Executive summary  

Ranging from three to 30 years, limitation periods for exercising individual rights in the 
European Union's (EU) 28 legal systems in the case of cross-border road traffic accidents 
differ  widely.  Rules  on  limitation  periods  differ  not  only  in  terms  of  length  of  time.  In 
fact, they vary within the EU Member States with regard to the beginning of a limitation 
period, the procedural requirements for stopping the running of a limitation period, and 
application to minors and disabled persons. The existence of such widely differing rules 
on limitation periods across the EU Member States can lead to situations where victims of 
cross-border road traffic accidents lose their right to compensation.  

At  international  and  European  levels,  four  instruments  exist  to  deal  with  cross-border 
road traffic accidents, namely: the Brussels I Recast Regulation (No 121/2012), the Rome 
II  Regulation  (No 864/207),  the  Motor  Insurance  Directive  (MID)  2009/203/EC  and  the 
Convention  on  the  Law  Applicable  to  Traffic  Accidents  (also  referred  to  as  the  Hague 
Convention). While the Brussels I Recast Regulation governs the issue of jurisdiction for 
road  traffic  accidents  occurring  within  the  EU  primarily,  the  three  latter  instruments 
contain choice of law rules to clarify which of the three legal regimes apply in the case of 
a cross-border road traffic accident. However, these instruments do not relate to the legal 
problems and issues that arise within the context of varying limitation periods across EU 
Member  States,  creating  legal  uncertainty  and  preventing  victims  from  gaining  proper 
access to justice. 

Against  this  backdrop,  this  European  Added  Value  Assessment  outlines  possible 
legislative  action  that  could  be  taken  at  EU  level  in  order  to  remove  the  legal 
uncertainties relating to limitation periods in cases of cross-border road traffic accidents. 
This legislative action includes the adoption on the basis of  Article 81(2)(e) of the Treaty 
on  the  Functioning  of  the  European  Union  (TFEU)  of  two  measures  aimed  at 
harmonising rules on limitation periods in the form of minimum standards:   

•  Rule  1:  introduction  of  a  four-year  limitation  period  applying  to  actions 
against: 

(1)  the  insurance  undertaking  covering  the  persons  responsible  against 
civil  liability  claims  under  Article  18  of  the  2009  Motor  Insurance 
Directive (MID); 
(2) the compensation body provided for in Articles 24 and 25 of the 2009 
MID  in  respect  of  any  loss  or  injury  or  death  resulting  from  accidents 
occurring in a Member State other than the Member State of residence of 
the  injured  party  that  are  caused  by  the  use  of  vehicles  insured  and 
normally based in a Member State. 

• Rule 2:  suspension of the  time-limit provided for  in  Rule 1 during the  period 
between the claimant's submission of his claim to: 

(1) the insurance undertaking of the person who caused the accident, or 
its claims representative provided  for  by Articles 21 and 22 of the  MID, 
or 

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Limitation Periods for Traffic Accidents  

(2) the compensation body provided for in Articles 24 and 25 MID, and 
the defendant's rejection of the claim. 

This EAVA argues that the adoption of these two rules would create a more certain legal 
framework when applying rules on limitation periods in cases of cross-border road traffic 
accidents than is currently the case. A more certain legal framework would constitute an 
added value in itself, but would also help to reduce the costs, for example, of additional 
lawyers'  fees  and  evidence  on  foreign  rules  when  facing  difficulties  with  limitation 
periods  in  relation  to  a  cross-border  road  traffic  accident.  The  EAVA  makes  a  cautious 
estimate that costs linked to the absence of harmonised limitation periods in cross-border 
road traffic accidents could amount to €300 million per year.  

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European Added Value Assessment 

Introduction  

Imagine the following scenario: An English citizen is critically injured in a collision with a 
Spanish registered and insured car when cycling through Spain during his vacation. This 
inevitably  raises  the  question:  which  law  and  which  limitation  period1  should  apply 
when  bringing  a  claim  for  compensation  before  a  court  or  other  competent  body?  The 
answer  to  this  question  is  not  that  simple.  In  fact,  limitation  periods  for  exercising 
individual  rights  in  the  European  Union's  (EU)  28  legal  systems  differ  substantially, 
ranging from three to 30 years.2 In the case of Spain, for example, the limitation period in 
non-contractual actions is one year, while it is 15 years for actions in contract. In contrast, 
England  has  a  primary  limitation  period  valid  for  most  kinds  of  personal  injury, 
irrespective of the nature of the action (contract/tort), of three years. Moreover, limitation 
periods do not only differ in length. There are also disparities between EU Member States 
when  it  comes  to  the  beginning  of  a  limitation  period,  the  procedural  requirements  for 
stopping  the  running  of  a  limitation  period,  and  application  to  minors  and  disabled 
people.  Consequently,  the  existence  of  such  differing  limitation  periods  create  legal 
uncertainty, and hence, many EU citizens are unaware of their legal rights when involved 
in a cross-border road traffic accident in the EU. 

According  to  Article  20  of  the  Motor  Insurance  Directive  (MID)  of  September  20093, 
victims  of  motor  vehicle  accidents  should  be  guaranteed  comparable  treatment 
irrespective  of  where  in  the  Community  accidents  occur.  The  central  aim  of  the  MID  is 
thus to provide protective rules for the free movement of people and vehicles within the 
EU. Established by the Treaty of Maastricht in 19924, freedom of movement for persons in 
the  European  Union  (EU)  is  one  of  the  cornerstones  of  EU  citizenship.  However,  on 
account  of  to  the  above-mentioned  existing  differences  in  terms  of  length  and  type  of 
limitation periods in the EU Member States, victims of cross-border traffic accidents often 
lose  their  right  to  compensation  for  injuries  and  damages.  In  other  words,  victims  may 
sometimes  receive  no  compensation  at  all,  since  the  limited  time  period  for  bringing  a 
claim is determined by the law of the Member State where the accident occurred, which 

1  Legal  systems  in  continental  Europe  refer  to  'prescription  periods',  namely  periods  of 
time after the expiry of which a claim is deemed extinguished; in common law countries 
there are only 'limitation periods', which indicate the time after which the right to lodge a 
claim  is  barred,  although  the  claim  itself  is  not  extinguished.  However,  neither  label  is 
entirely appropriate since neither adequately reflects the consequences of failing to abide 
by the rules in question. Thus, for the purpose of this study the term 'limitation period' is 
used. 
2 See, e.g., Andrea Renda, Lorna Schreffler, Compensation of victims of cross-border road 
traffic  accidents  in  the  EU:  Assessment  of  selected  options,  Briefing  Note,  Directorate 
General  for  Internal  Policies,  Policy  Department  C.  Citizens'  Rights  and  Constitutional 
Affairs, European Parliament, March 2007. 
3 Directive 2009/103/EC of the European Parliament and of the Council of 16 September 
2009 relating to insurance against civil liability in respect of the use of motor vehicles, and 
the enforcement of the obligation to insure against such liability.  
4 Treaty of Maastricht on European Union. 

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Limitation Periods for Traffic Accidents  

may  in  some  cases  be  much  shorter  than  in  the  victim's  home  country.  The  MID's 
objective  of  facilitating  the  free  movement  of  persons  within  the  EU  through  protective 
rules is thus not fulfilled.  

Against this backdrop, the aim of this European Added Value Assessment (EAVA) is to 
analyse  possible  action  at  EU  level  to  improve  the  legal  situation  in  the  case  of  cross-
border road traffic with  regard to limitation periods  and to assess the  added value that 
these  EU  action(s)  could  potentially  create.  In  order  to  do  so,  the  study  entails  five 
analytical steps. Firstly, it will describe the current legal system for limitation periods in 
cross-border road traffic accidents and its weaknesses. Secondly, it will demonstrate the 
costs arising from these weaknesses. Thirdly, it will outline the EU policy context on the 
topic.  Fourthly,  it  will  describe  possible  EU  legislative  action  on  limitation  periods  in 
cross-border road traffic accidents and assess, fifthly, the added value of an EU legal act. 

1. The current legal system for limitation periods in cases of 
cross-border road traffic accidents and its weaknesses  

Private  international  law  deals  with  situations  that  involve  a  private  dimension  and  a 
cross-border  element.  In  the  realm  of  private  international  law,  there  are  several 
international  and  European  instruments  currently  applicable  with  the  respect  to  cross-
border road traffic accidents.  

On  the  international  level,  the  Convention  on  the  Law  Applicable  to  Traffic  Accidents5 
deals with cross-border road traffic accidents. At the EU level, three instruments deserve 
particular attention in the context of cross-border road traffic accidents: 
• Brussels I Recast Regulation (No 1215/2012)6   
• Rome II Regulation (No 864/207)7 
• EU Motor Insurance Directive (MID) 2009/103/EC8 
The Convention on the Law Applicable to Traffic Accidents, the Rome II Regulation and 
the  MID contain choice  of law rules to clarify which  of the  three  legal regimes  apply in 
the case of a cross-border road traffic accident. The Brussels I Recast Regulation primarily 
governs the issue of jurisdiction for road traffic accidents occurring within the EU. Under 
the  regulation,  the  claimant  can  choose  whether  to  bring  the  claim  in  the  defendant's 

5 Convention on the Law Applicable to Traffic Accidents (concluded 4 May 1971).  
6  Regulation  (EU)  No  1215/2012  of  the  European  Parliament  and  of  the  Council  of  12 
December 2012 on jurisdiction and the recognition and enforcement of judgments in civil 
and commercial matters (recast). 
7  Regulation  (EC)  No  864/2007  of  the  European  Parliament  and  of  the  Council  of  July 
2007 on the law applicable to non-contractual obligations (Rome II). 
8 Directive 2009/103/EC of the European Parliament and of the Council of 16 September 
2009 relating to insurance against civil liability in respect of the use of motor vehicles, and 
the enforcement of the obligation to insure against such liability. 

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European Added Value Assessment 

domicile within the EU or to stay in the framework of the legislation of the country where 
the accident occurred.9  

Regarding choice of law rules, the Convention on the Law Applicable to Traffic Accidents 
contains a basic rule (Article 3) that designates as applicable  the  law of  the  place of the 
accident. The convention provides for a system of rigid exceptions such as, for example, 
that  the  law  of  the  state  of  registration  of  the  vehicle  concerned  shall  apply  to  claims 
made by the driver, owner or other persons having control of the vehicle. Nevertheless, 
under  the  convention,  in  most  circumstances  the  applicable  law  will  be  the  law  of  the 
place of the accident.10 Only 13 of the EU Member States are currently contracting states 
of the convention.11 

Similarly  to  the  Convention  on  the  Law  Applicable  to  Traffic  Accidents,  the  Rome  II 
Regulation  includes  an  article  (4)  providing  that  the  applicable  law  in  a  cross-border 
traffic accident will be that of the place where the direct damage occurred, excluding as a 
basis for the choice of law any possible indirect damage. Here too, however, exceptions 
exist.  For  example,  when  the  parties  share  habitual  residence,  the  law  of  that  state  will 
apply  (Article  4  (2)).  In  spite  of  these  exceptions,  following  the  Rome  II  Regulation,  the 
law applicable when bringing a claim in a cross-border road traffic accident is often the 
law  of  the  place  of  the  accident.12  Crucially,  the  relationship  between  the  Rome  II 
Regulation  and  the  Convention  on  the  Law  Applicable  to  Traffic  Accidents  is  not  very 
clear. Moreover, both instruments can trigger a different choice of applicable law owing 
to their varying exceptions. An example by Jenny Papettas demonstrates this:  

Where two German citizens hire a car in Spain and the driver crashes into a tree, 
a German court applying Rome II would apply German law as the law of shared 
habitual  residence,  whilst  a  Spanish  court,  applying  the  Hague  Convention, 
would apply Spanish law as the law of the place of registration of the vehicle.13   

As  a  result,  there  are  consequences  as  to  the  relevant  limitation  period,  which  will 
depend on the state where the claim for compensation in a cross-border traffic accident is 
put forward, leading to legal uncertainty with regard to its duration. 

The  EU  Motor  Insurance  Directive  (MID)  ensures  that  in  a  cross-border  road  traffic 
accident visiting victims can bring a claim for compensation directly against an insurer or 
compensation body in a court of her or his Member State of residence. The purpose of the 
MID is thus to provide victims of cross-border road traffic accidents with a familiar legal 

9  See  Jenny  Papettas,  Marco  Bona,  EU  Harmonisation  of  Limitation  Periods  for  Claims 
Arising out of Cross-Border Road Traffic Accidents, pp. 33 and 34. 
10  For  further  details  on  the  convention  see,  e.g.,  Jenny  Papettas,  Choice  of  Law  for  Cross-Border 
Road  Traffic  Accidents,  Note,  Directorate  General  for  Internal  Policies,  Policy  Department  C. 
Citizens' Rights and Constitutional Affairs, European Parliament, November 2012, pp. 15-17. 
11  Austria,  Belgium,  Croatia,  Czech  Republic,  France,  Latvia,  Lithuania,  Luxembourg,  the 
Netherlands, Poland, Slovenia, Slovakia and Spain. 
12  See  Papettas,  Bona,  EU  Harmonisation  of  Limitation  Periods  for  Claims  Arising  out  of  Cross-
Border Road Traffic Accidents, pp. 36 and 37. 
13 Papettas, Choice of Law for Cross-Border Road Traffic Accidents, Note, p. 17. 

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Limitation Periods for Traffic Accidents  

environment. In other words, to allow them to bring a claim in their own language and 
under legal regimes and procedures that are familiar to them and their legal adviser. The 
MID  has  thus  the  underlying  objective  of  securing  the  free  movement  of  persons  by 
ensuring  that  they  receive  comparable  legal  treatment  in  cross-border  road  traffic 
accidents  throughout  the  EU.  Under  the  Brussels  I  Recast  Regulation  (Article  11(1)(a)), 
however, the claimant can choose where the claim is brought directly against an insurer, 
in the Member State of the insurer's domicile or in the claimant's state of residence.14 

However,  none  of  these  instruments  relates  to  the  legal  problems  and  issues  that  arise 
within the context of limitation periods in cross-border road traffic accidents. Therefore, 
the far-reaching differences between EU Member States with regard to rules on limitation 
periods create a complex and complicated legal situation. This includes legal uncertainty 
in  terms  of  the  overall  time  limits  for  bringing  a  claim,  the  beginning  of  a  limitation 
period,  the  procedural  requirement  for  stopping  a  limitation  period,  suspension  of  the 
running of a limitation period, the protection of victims after the expiry of  the limitation 
period,  the  discretion  granted  to  the  courts  to  extend  limitation  periods,  and  the 
protection of minors and persons with disabilities.15  

Therefore, lack of familiarity with foreign rules on limitation periods can lead to the loss 
of the right to make a valid claim and/or to obstacles to accessing justice. Lawyers need 
in-depth knowledge of relevant rules on limitation periods under foreign legal systems in 
order  to  give  advice.  Furthermore,  the  legal  uncertainty  caused  by  differing  limitation 
periods  across  EU  Member  States  generates  costs  arising  from  cross  border-road  traffic 
accidents as will be demonstrated in the next section of this study. 

2.  The  costs  of  not  having  European  Union-wide 
harmonised limitation periods 

Based on available data, the costs linked to the absence of harmonised limitation periods 
in  cross-border  road  traffic  accidents  are  estimated  to  amount  to  approximately  €300 
million per year. In fact, the true costs are likely to be higher. As there are no indicators or 
data  available  on  issues  directly  associated  with  varying  limitation  periods  across  EU 
Member  States,  such  as  additional  court  fees  or  additional  translation  costs,  these  costs 
cannot be taken into account.  

What can be taken into account are the increased costs of lawyers' legal advice and expert 
evidence on foreign rules when foreign limitation rules have to be applied in the context 
of  a  cross-border  road  traffic  accident.  The  average  additional  costs  of  lawyers'  legal 
advice  may  reach  €600  per  claim.  The  average  costs  of  foreign  expert  evidence  on  rule 
limitation  periods  is  around  €300  per  claim.  According  to  data  from  the  European 

14  See  Papettas,  Bona,  EU  Harmonisation  of  Limitation  Periods  for  Claims  Arising  out  of  Cross-
Border Road Traffic Accidents, p. 35.  
15 Several examples of varying application of limitation periods can be found in ibid. pp. 7 - 15. 

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European Added Value Assessment 

Commission  and  previous  calculations16,  the  number  of  cross-border  road  traffic 
accidents in the EU might be assumed to 775 000 per year. Of these 775 000 cross-border 
road traffic accidents per year, about 248 000 cases require additional lawyers' advice in 
relation to limitation period rules, amounting to an overall additional cost of €148 million 
per year. The number of cases where expert evidence on foreign limitation period rules is 
required is about 511 500, amounting to an overall additional cost of €153 450 million per 
year.  Added  together,  costs  linked  to  the  absence  of  harmonised  limitation  periods  in 
cross-border road traffic accidents is estimated to amount to approximately €300 million 
per  year.  Furthermore,  data  shows  that  personal  injury  claimants  who  lost  the  right  to 
claim  will  lose,  on  average,  €16 000  if  their  claim  becomes  time-barred  or  extinguished. 
Taking the  example  of the  United Kingdom, for  damage only claims the  loss  would be, 
on  average,  €2 000  per  claim.  On  account  of  the  lack  of  available  solid  statistical  data, 
however, these figures should be considered a rough estimation at best. 17 

Crucially, in the  majority of cross-border traffic accidents, the  claimant will not lose the 
right  to  claim  for  compensation,  but  will  face  obstacles  in  accessing  justice  owing  to 
unfamiliar  and  varying  rules  on  limitation  periods.  These  obstacles  cause  costs  in  four 
forms: (i) increased lawyer's costs, (ii) costs of expert evidence on foreign rules, (iii) costs 
of translation of documents, and (iv) additional court fees. Against this  backdrop, it can 
be assumed that the real costs linked to the absence of harmonised limitation periods in 
EU legislation is indeed over €300 million per year. 

3. The EU policy context 

Back  in  February  2007,  the  European  Parliament  (EP)  adopted  a  resolution  with 
recommendations  to  the  European  Commission  on  limitations  periods  in  cross-border 
disputes involving personal injuries and fatal accidents.18 In its resolution the  EP  called 
on  the  Commission  'to  carry  out  an  inquiry  into  the  effects  of  the  existence  of  differing 
limitation  periods  on  the  internal  market,  and  particularly  on  citizens  exercising  their 
freedoms  under  the  Treaty'.  The  Commission  reacted  to  this  call  in  2012,  by  inter  alia, 
conducting  a  public  consultation  on  'Limitation  periods  for  compensation  claims  of 
victims  of  cross-border  road  accidents  in  the  EU'.19  This  public  consultation  built  on  an 
extensive  report  evaluating  options  for  improving  the  position  of  cross-border  victims, 
which had been carried out by the Belgian law firm Demolin, Brulard, Barthelemy-Hoche 
at the request of the European Commission's Directorate General for Internal Market and 

16  Demolin,  Brulard,  Barthelemy-Hoche,  Compensation  of  victims  of  cross-border  road  traffic 
accidents  in  the  EU:  Comparison  of  national  practices,  analysis  of  problems  and  evaluation  of 
options for improving the position of cross-border victims, Report, Directorate for Internal Market 
and  Services,  European  Commission,  2009;  Renda,  Lorna  Schreffler,  Compensation  of  victims  of 
cross-border road traffic accidents in the EU. 
17  More  details  on  the  figures  can  be  found  in  Papettas,  Bona,  EU  Harmonisation  of  Limitation 
Periods for Claims Arising out of Cross-Border Road Traffic Accidents, pp. 47-51, pp. 64-66.  
18  European  Parliament  resolution  with  recommendation  to  the  European  Commission  on 
limitations  periods  in  cross-border  disputes  involving  personal  injuries  and  fatal  accidents 
(2006/2014(INI)). 
19 
http://ec.europa.eu/justice/newsroom/civil/opinion/121031_en.htm#summary. 

Commission's  website: 

consultation, 

information 

For 

the 

the 

see 

on 

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Limitation Periods for Traffic Accidents  

Services.20  The  Commission's  public  consultation  presented  four  options  addressing  the 
issue of limitation periods: 

Option 1: Improving information to 'accident-abroad victims' in concrete cases - optional 
Option  2:  Improving  information  to  'accident-abroad  victims'  in  concrete  cases  - 
mandatory 
Option 3: Improving general information on limitation and prescription periods 
Option  4:  New  rules  harmonising  limitation  and  prescription  periods  for  cross-border 
traffic accidents 

The Commission summarised the findings of the consultation as follows: 

'The  difficulties faced by  victims  of  cross-border  road  traffic  accidents  with 
respect  to  the  time-limits  for  claiming  compensation  were  confirmed  by  some 
respondents.  Among  the  options  put  forward  for  consultation,  the  one  which 
received  almost  unanimous  support  was  that  of  improving  the  general 
information  on  prescription  and  limitation  periods,  with  varying  degrees  of 
support for  the  options of improving information to visiting victims in concrete 
cases. 
harmonising 
prescription/limitation  periods  for  road  traffic  accidents  across  the  EU  was  not 
conclusive;  several  replies  questioned  the  necessity  of  having  special  rules  for 
prescription/limitation periods for road traffic accidents only.' 

appropriateness 

feedback 

The 

the 

on 

of 

In  its  follow-up  to  the  consultation,  the  Commission  has  not  yet  prepared  a  specific 
proposal  on  how  to  tackle  the  legal  obstacles  that  victims  of  cross-border  road  traffic 
accidents  face  as  a  result  of  varying  rules  for  limitation  periods  across  the  EU  Member 
States.   

In order to fill the legislative gap in the context of limitation periods in cross-border road 
traffic  accidents,  the  Committee  on  Legal  Affairs  (JURI)  of  the  European  Parliament 
decided  to  draw-up  a  new  legislative  own-initiative  report,  providing  the  following 
justification:  'Limitation  periods  for  tort  claims  vary  widely  between  Member  States.  In 
the specific case of traffic accidents with a cross-border element, that can lead to victims 
losing  their  right  to  reparation.  The  committee  would  like  to  consider  whether  it  is 
appropriate to provide for a standard limitation period for such cases.' 

20  Demolin,  Brulard,  Barthelemy-Hoche,  Compensation  of  victims  of  cross-border  road  traffic 
accidents  in  the  EU:  Comparison  of  national  practices,  analysis  of  problems  and  evaluation  of 
options for improving the position of cross-border victims, Report, Directorate for Internal Market 
and Services, European Commission, 2009. 

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European Added Value Assessment 

4. Possible EU legislative action 

Given the weaknesses of the existing legal frameworks causing legal uncertainty and the 
considerable  costs  arising  from  the  differences  in  limitation  periods  across  EU  Member 
States,  this  EAVA  study  argues  that  rules  of  harmonisation  providing  minimum 
standards would address the main issues currently faced by claimants in cases of cross-
border road traffic accidents. EU legislative action to improve the protection of victims in 
cross-border road traffic accidents has a suitable legal basis with Article 81 of the Treaty 
on the Functioning of the European Union (TFEU)21, enabling the EU to 'develop judicial 
cooperation  in  civil  matters  having  cross-border  implications  based  on  the  principle  of 
mutual  recognition  of  judgments  and  of  decisions  in  extrajudicial  cases'.  Furthermore, 
Article 81 TFEU provides for the adoption of measures for the approximation of laws and 
regulation of the Member States by the EP and the Council, 'acting in accordance with the 
ordinary legislative procedure, when necessary for the proper functioning of the internal 
market.'  Basically  aimed  at  ensuring  'effective  access  to  justice'  (TFEU  Article  81(2)  (e)), 
the introduction of two harmonising measures using the above mentioned legal base and 
respecting  the  principle  of  subsidiarity  should  be  considered.  These  two  measures  for 
harmonising  limitation  periods  in  the  form  of  minimum  standards,  which  could  be 
enacted under the 2009 MID, are: 

•  Rule  1:  introduction  of  a  four-year  limitation  period  applying  to  actions 
against: 

(1)  the  insurance  undertaking  covering  the  persons  responsible  against 
civil  liability  under  Article  18  of  the  2009  Motor  Insurance  Directive 
(MID); 
(2) the compensation body provided for in Articles 24 and 25 of the 2009 
MID  in  respect  of  any  loss  or  injury  or  death  resulting  from  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. 

•  Rule  2:  the  suspension  of  the  time-limit  provided  for  in  Rule  1  during  the 
period between the claimant's submission of his claim to 

(1) the insurance undertaking of the person who caused the accident, or 
its claims representative provided by Articles 21 and 22 of the MID, or 
(2) the compensation body provided for in Articles 24 and 25 MID, and 
the defendant's rejection of the claim. 

These  two  proposals  concerning  the  possible  regime  applicable  to  limitation  periods 
partly take up suggestions already indicated in the EP resolution of March 2007, notably 
the  introduction  of  a  general  limitation  period  of  four  years.  Although  the  two  rules  in 
the  form  of  baseline  minimum  standards  will  not  resolve  every  legal  uncertainty,  they 
will  cover  those  rules  of  limitation  periods  that  are  most  likely  to  give  rise  to  legal 

21 Consolidated Version (2012) on the Treaty on the Functioning of the European Union. 

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Limitation Periods for Traffic Accidents  

uncertainty  in  the  context  of  cross-border  road  traffic  accidents  and  are  causing  the 
additional costs.   

5. European added value 

As  this  study  shows,  the  costs  linked  to  additional  lawyer's  fees  and  foreign  expert 
evidence  generated  by  legal  uncertainty  in  applying  unfamiliar  foreign  rules  on 
limitation periods amount to up to €300 million per year. These costs for victims of cross-
border road traffic accidents could be greatly reduced by taking legislative action at EU 
level according to the proposals outlined above.  

Legislative measures by the EU to harmonise rules for limitation periods under the 2009 
MID  would  help  to  create  more  legal  certainty  for  victims  of  cross-border  road  traffic 
accidents  than  is  currently  the  case.  In  other  words,  a  EU  legal  act  would  present 
enormous added value in terms of securing access to justice, guaranteeing that victims do 
not  lose  their  right  to  reparation  as  well  as  supporting  the  free  movement  of  people 
within the EU in line with the purpose of the MID.  

Furthermore, EU legal measures would contribute to a considerable simplification of the 
framework  applicable  to  cross-border  road  traffic  accidents  within  international  private 
law, ending the substantial diversity of limitation periods across the EU Member States.  

Finally,  the  simplification  of  the  legal  situation  through  a  harmonisation  of  rules  on 
limitation  periods  in  the  form  of  minimum  standards  at  EU  level  would  generate 
European added value in terms of reduced legal, as well as emotional, costs. 

RECOMMENDATION 

The EU could consider adopting on the basis of Article 81 TFEU (2) (e) a legal act establishing 
measures  to  harmonise  minimum  standards  of  rules  on  limitation  periods  in  the  field  of 
international  private  law,  as  outlined  in  this  European  Added  Value  Assessment,  to  address 
the legal uncertainty faced by victims of cross-border road traffic accidents. 

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European Added Value Assessment 

Annex I  

 EU Harmonisation of Limitation Periods for 
Claims Arising out of Cross-Border Road 
Traffic Accidents 

 by Dr Jenny Papettas and Dr Marco Bona 

Abstract  
Rules of limitation determine the time available for the bringing of a claim for compensation before 
a  court  or  other  competent  body.  They  are  extremely  important  in  the  context  of  civil  actions 
following  the  occurrence  of  a  road  traffic  accident  (RTA).  The  application  of  foreign  limitation 
periods creates additional hurdles for the claimant in trying to access justice. Minimum standards 
harmonisation  covering  the  overall  time  limit,  the  beginning  of  the  time  period  and  the 
interruption  of  the  period,  would  address  many  of  the  issues  currently  faced  by  visiting  victims 
and would lead to significant savings in terms of legal costs, delays and emotional costs. In total, 
across  the  EU,  addressing  the  issues  associated  with  the  application  of  foreign  limitation  rules 
could therefore generate up to €300 m in added value, each year. 

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Limitation Periods for Traffic Accidents  

AUTHORS 
This study was written by Dr Jenny Papettas and Dr Marco Bona, at the request of the 
European Added Value Unit of the Directorate for Impact Assessment and European 
Added Value, within the Directorate General for Parliamentary Research Services (DG 
EPRS) of the General Secretariat of the European Parliament.  

Administrator responsible  
Christian Salm 

To contact the Unit, please email EPRS-EuropeanAddedValueUnit@ep.europa.eu 

LINGUISTIC VERSIONS 
Original: EN 

DISCLAIMER 
The opinions expressed in this document are the sole responsibility of the authors and 
do not necessarily represent the official position of the European Parliament. 

Reproduction  and  translation  for  non-commercial  purposes  are  authorised,  provided 
the source is acknowledged and the publisher is given prior notice and sent a copy. 

Manuscript completed in June 2016 
Brussels © European Union, 2016. 

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European Added Value Assessment 

Contents 

List of Tables ................................................................................................................................. 18 

List of Abbreviations ................................................................................................................... 18 

Executive Summary ..................................................................................................................... 19 

1 Introduction ............................................................................................................................... 22 

I 

II 

Cross Border Accidents and Rules of Limitation ........................................................... 22 

Background ......................................................................................................................... 23 

III  Report Structure and Methodology ................................................................................. 25 

2 Rules of Limitation for Traffic Accidents in the EU ............................................................. 28 

I 

II 

Introduction ........................................................................................................................ 28 

Comparative Overview ..................................................................................................... 28 

1.  Overall Time Limits....................................................................................................... 28 

2.  Beginning of the limitation period: the dies a quo. ..................................................... 31 

3.  Substantive  and  procedural  requirements  to  stop  the  running  of  the 

limitation period. ................................................................................................................. 33 

III  Conclusion ........................................................................................................................... 35 

3 Rules of Private International Law ......................................................................................... 35 

I 

Jurisdiction .......................................................................................................................... 35 

II  Applicable Law ................................................................................................................... 37 

1.  Rome II ............................................................................................................................ 38 

2.  Hague Convention ........................................................................................................ 39 

III  Private International Law Outcomes ............................................................................... 41 

4 Harmonisation of Limitation Periods .................................................................................... 42 

I 

Options for Harmonisation ............................................................................................... 43 

1.  Choice of Law Approach .............................................................................................. 43 

2.  Provision of Information to Victims............................................................................ 44 

3.  Soft Convergence ........................................................................................................... 45 

4.  Comprehensive Harmonisation .................................................................................. 46 

5.  Minimum Standards Harmonisation .......................................................................... 47 

II 

Recommended Option ....................................................................................................... 48 

III 

Specific Issues Relating to Proportionality ..................................................................... 50 

1.  The Numbers of Relevant Accidents .......................................................................... 50 

2.  How Often Are Limitation Issues Raised? ................................................................. 53 

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Limitation Periods for Traffic Accidents  

IV  Legal Basis for Action ........................................................................................................ 54 

V 

Conclusion ........................................................................................................................... 57 

5 Proposed Minimum Content ................................................................................................... 57 

I 

Existing Harmonised Rules ............................................................................................... 58 

II  General Principles from ECtHR and CJEU: access to justice and victims' 

protection. ..................................................................................................................................... 61 

1.  ECtHR and National Limitation Laws........................................................................ 61 

2.  CJEU Case Law .............................................................................................................. 63 

III  Existing Proposals for Harmonisation ............................................................................. 64 

IV 

Suggested Minimum Contents ......................................................................................... 65 

V 

Conclusion ........................................................................................................................... 67 

6 Conclusion – The Added Value of Harmonisation .............................................................. 67 

I 

Complete  loss  of  claim  where  the  claim  becomes  time  barred  or  the 

right is extinguished .................................................................................................................... 67 

II 

Increased legal costs due to the uncertainty of the application of foreign 

rules  ............................................................................................................................................... 68 

Selected Bibliography .................................................................................................................. 70 

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European Added Value Assessment 

List of Tables 

TABLE 1 – OVERALL TIME LIMITS ..................................................................................................... 30 

TABLE 2 – THE START OF THE LIMITATION PERIOD ......................................................................... 32 

TABLE 3 – INTERRUPTION OF THE LIMITATION PERIOD ................................................................... 34 

TABLE 4 – PIL OUTCOMES ................................................................................................................ 41 

TABLE 5 - HOW OFTEN ARE LIMITATION ISSUES RAISED? .............................................................. 54 

TABLE 6 – PASSENGER'S RIGHTS REGULATIONS ............................................................................... 59 

List of Abbreviations 

CJEU 
EC 
ECHR 

ECtHR   
EU 
OJ 
MID 
RTA 
TEU 
TFEU 

on  

Convention 

Court of Justice of the European Union  
European Community 
 European 
Human Rights 
European Court of Human Rights  
European Union  
Official Journal 
Motor Insurance Directive  
Road Traffic Accident  
Treaty on European Union 
Treaty  on  the  Functioning  of  the  European 
Union   

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Limitation Periods for Traffic Accidents  

Executive Summary 

Rules  of  limitation  determine  the  time  available  for  the  bringing  of  a  claim  for 
compensation before a court or  other competent body. They are extremely important in 
the  context  of  civil  actions  following  the  occurrence  of  a  road  traffic  accident  (RTA).  If 
they  are  not  complied  with  they  can  determine  the  failure  of  a  claim  even  before 
substantive legal issues arise. They enable a defendant to bring proceedings to an end at a 
relatively  early  stage,  before  having  to  go  to  the  expense  of  preparing  a  defence  on  the 
substantive  legal  issues  and  can  effectively  prevent  what  might  otherwise  be  a  valid 
claim  from  proceeding.  From  the  point  of  view  of  the  victim,  failure  to  comply  with 
limitation  will  be  fatal  to  an  otherwise  valid  claim.  Where  failure  to  comply  arises 
because of uncertainty about foreign applicable rules, because of the cross border nature 
of the accident, the issue is whether there is an obstacle to effective access to justice.  

In the EU protection for victims of road accidents which occur in a Member States (MS) 
other than that where the victim is resident has been in place for over 10 years. The Motor 
Insurance Directive (MID) ensures that visiting victims can bring a claim directly against 
an  insurer  or  a  compensation  body  in  the  court  of  their  MS  of  residence.  This  provides 
victims  with  a  familiar  legal  environment,  the  ability  to  proceed  in  their  own  language 
and under legal procedures which will be familiar, either to themselves or to their legal 
advisors.  The  aim  of  these  measures  is  to  ensure  victims  receive  comparable  treatment, 
regardless  of  where  in  the  EU  the  accident  occurs,  giving  protection  to  victims  and 
supporting the free movement of people and vehicles within the Union.  

Rules regulating which law should be applied to the claim very often designate the law of 
the  place  of  the  accident.  This  is  likely  to  be  unfamiliar  to  the  victim  and  their  legal 
advisors.  Also,  most  cross  border  accident  victims  will  take  advantage  of  the  ability  to 
bring an action at home, meaning that the court hearing the case will have to apply a law 
which is foreign to it. This includes the unfamiliar rules of limitation. 

There is a high level of complexity involved in national rules of limitation. There can be 
issues  in  understanding  which  is  the  applicable  overall  time  limit,  when  and  how  time 
begins to run and how this is suspended or interrupted. National lawyers need in-depth 
knowledge  of  the  relevant  rules  in  order  to  give  accurate  advice  in  any  given 
circumstance.  Each  Member  State  has  in  place  different  rules  for  each  of  these  aspects, 
creating a unique legal landscape which requires specialist knowledge. 

Generally speaking it is more difficult to organise a claim from abroad. It can take time to 
discover which claims representative or insurer a claim should be made against; to collect 
evidence  about  the  accident;  and  to  get  any  necessary  documents  translated.  There  are 
examples  of  cases  in  which  the  lack  of  familiarity  with  the  way  in  which  the  rules  of 
limitation  operate  has  led  to  the  claimant  losing  the  right  to  claim  altogether.  This  is 
especially so where the overall time limit is particularly short or where there is ambiguity 
about the way in which time can be suspended or interrupted.  

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More  often  however,  the  application  of  foreign  limitation  periods  creates  additional 
hurdles for the claimant in trying to access justice. The situation often requires additional 
hours  to  be  spent  by  the  legal  advisor  dealing  with  the  issue  of  limitation,  which  they 
would not have had to do for purely domestic cases. This increases legal costs. There may 
be  additional  costs  if  an  expert  in  the  country  of  the  accident  is  called  upon  to  provide 
advice about the  limitation issue. There  are indications that this happens regularly. The 
delay,  extra  expense  and  uncertainty  created  by  the  application  of  foreign  limitation 
periods also gives rise to emotional costs for the victim, who may experience stress worry 
and  anxiety.  This  goes  directly  against  the  purpose  of  the  protective  rules  of  the  MID, 
which aim to facilitate the free movement of persons within the EU.  

The  complexity  of  the  situation  and  the  difficulties  faced  by  claimants,  therefore  give 
sound reason for the consideration of harmonising rules relating to limitation. 

Although various ways of dealing with these issues have been suggested, it is submitted 
that  the  method  which  will  be  effective  in  overcoming  the  difficulties  created  by  the 
current  situation,  but  which  will  also  satisfy  the  principles  of  subsidiarity  and 
proportionality,  is  to  effect  minimum  standards  harmonisation  in  relation  to  the  main 
aspects of limitation law. Harmonised rules should only apply to actions provided for by 
the  MID  –  actions  against  insurers  and  actions  against  compensation  bodies,  and  then 
only to those situation which are of a cross border nature. A legislative measure in these 
terms could be correctly based on Art 81(2)(e) Treaty on the Functioning of the European 
Union (TFEU).  

Minimum standards harmonisation covering the overall time limit, the beginning of the 
time period and the interruption of the period, would not eliminate all uncertainty about 
the applicable rules of limitation, but would address most of the issues currently faced by 
visiting victims and would lead to significant savings in terms of legal costs, delays and 
emotional costs. In terms of financial costs, data shows that claimants who lose the right 
to claim will lose, on average, €16,000 per claim for claims involving personal injury and 
€2,000  per  claim  for  property  damage.  This  obviously  does  not  reflect  the  tragic 
consequences which would materialise should a person with catastrophic injury lose the 
right to claim.  

There is difficulty, due to a lack of available statistical data, in calculating the number of 
accidents  occurring  in  the  EU  each  year,  as  well  as  how  many  accidents  give  rise  to 
claims  which  raise  limitation  issues.  Analysis  suggests  that  up  to  250,000  people  each 
year could face additional hurdles in bringing a claim as a result of the application of a 
foreign limitation period and that up to 775,000 accidents could give rise to the  need to 
seek  foreign  expert  advice  about  limitation  issues.  The  average  additional  legal  costs 
associated with foreign limitation issues are likely to be in the region of €600 per claim. 
The average cost of foreign expert  evidence on limitation is likely to be in the  region  of 
€300 per claim.  

In  total,  across  the  EU,  addressing  the  issues  associated  with  the  application  of  foreign 
limitation  rules  could  therefore  generate  up  to  €300  m  in  added  value,  each  year.  This 
figure  does  not  take  into  account  the  costs  associated  with  additional  court  fees  or 

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Limitation Periods for Traffic Accidents  

additional translation costs, which are directly associated with the issue of limitation, as 
there  is no data on these issues. But it does mean  that the  true financial added value is 
likely to be higher still.  

The decision to harmonise rules of limitation for other claims arising out of other modes 
of  transport  has  not  depended  on  the  need  to  show  that  enough  people  would  benefit 
from such action, or that enough money would be saved. Protecting access to justice and 
thereby  supporting  free  movement  of  people  within  the  Union  constitutes  a  sufficient 
reason  to  harmonise  rules  in  relation  to  cross  border  RTAs.  However,  there  are  many 
people who are potentially affected by the current, very complex and difficult situation, 
and there are likely to be significant savings involved in taking action on this issue. 

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European Added Value Assessment 

1. Introduction  

This European Added-Value Report is the culmination of a research study conducted by 
Dr  Jenny  Papettas  and  Dr  Marco  Bona  on  behalf  of  the  European  Parliament.  The 
research and the report form part of an on-going process, examining the position of those 
who  become  the  victims  of  road  traffic  accidents  (RTAs)  in  an  EU  Member  State  (MS), 
other than that in which they habitually reside. The overarching aim of this report is to 
assist  the  European  Parliament  in  deciding  whether,  and  if  so  how,  to  formulate 
legislative  proposals  for  the  EU  wide  harmonisation  of  rules  of  limitation  for  claims 
arising out of cross border RTAs.  

A  note  should  be  made  here  about  the  terminology  used  in  this  report.  Rules  which 
provide  for  a  time  limit  for  the  bringing  of  a  claim,  the  date  at  which  time  should  be 
calculated  from  and  so  on,  are  referred  to  differently  as  rules  of  prescription  in  some 
Member  States (usually those with a civilian law tradition) and as rules of  limitation  in 
others  (often  common  law  countries).  Rules  of  prescription  have  the  effect  of 
extinguishing the right upon which the claim is founded and are usually considered to be 
substantive rules of law. Rules of limitation, on the other hand, do not affect the existence 
of the right, but rather limit the ability of the claimant to pursue that right in a court of 
law and are usually considered to be procedural in nature.22  

It has been said that in fact neither label is entirely appropriate since neither adequately 
reflects the consequences of failing to adhere to the rules in question.23 For the purpose of 
this  report  the  term  limitation  is  used.  This  is  the  term  used  in  EU  instruments  which 
harmonise such rules in relation to specific actions provided for by EU law.24 Limitation 
is  also  the  term  used  by  the  European  Commission  in  the  public  consultations  it 
conducted on the issue under consideration here. Use of the term limitation in this report 
is not intended to demonstrate a preference for one term over the other.  

I  Cross Border Accidents and Rules of Limitation 

Rules  of  limitation  determine  the  time  available  for  the  bringing  of  a  claim  for 
compensation before a court or  other competent body. They are extremely important in 
the  context  of  civil  actions  following  the  occurrence  of  a  RTA.  If  they  are  not  complied 
with they can determine the failure of a claim even before substantive legal issues arise.25 
They enable a defendant to bring proceedings to an end at a relatively early stage, before 
having to go to the expense of preparing a defence on those substantive legal issues. They 
can effectively prevent what might otherwise be a valid claim from proceeding. From the 
point of view of the victim, failure to comply with limitation will be fatal to an otherwise 
valid  claim.  Where  failure  to  comply  arises  because  of  uncertainty  about  foreign 

22 R. Zimmermann Comparative foundations of a European Law of Set-Off and Prescription (CUP 2002) 
p69-75.  
23 Ibid p 75.  
24 See 5 (a) below.  
2525 See Folino v. Link Motor Insurance Ltd and others Lamezia Terme Court, 29.10.2009 No. 1024.  

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Limitation Periods for Traffic Accidents  

applicable rules, because of the cross border nature of the accident, the issue is whether 
there is an obstacle to effective access to justice.  

This  issue  is  particularly  important  in  relation  to  traffic  accident  victims  for  two  main 
reasons. Firstly, the sheer volume of traffic accidents means that any problem with regard 
to accessing justice is liable to affect a great many claimants, both now and in the future. 
Secondly, the EU has long recognised that the creation of a borderless Union, in which it 
is  necessary  that  people  are  able  to  move  freely  between  Member  States,  requires  the 
protection of victims of accidents which occur in a Member State which is not that of the 
victim's residence.  

II  Background  

Towards the end of the 1960s the then European Community (EC) institutions decided to 
take  action  to  begin  a  process  of  harmonisation  of  rules  relating  to  the  provision  of 
compulsory third party liability motor insurance. This was thought necessary in order to 
support  the  fundamental  freedoms  associated  with  the  free  movement  of  vehicles  and 
people and with the development of the internal market. The process has been on-going 
since  the  early  1970s  and  has  produced  six  Directives,  known  as  the  Motor  Insurance 
Directives.26  The  first  five  Directives  progressively  constructed  a  harmonised  system  of 
rules  relating  to  third  party  liability  motor  insurance,  the  sixth  Directive  is  a 
consolidation instrument. 

The Directives make third party liability insurance compulsory throughout the territory 
of  the  EU,27  set  down  minimum  levels  of  cover,28  stipulate  who  must  be  covered  and 
which exclusions may be relied upon by insurers as against third party claimants.29 The 
European  legislator  was  also  alive  to  the  difficulties  faced  by  victims  who  became 

26 Council Directive 72/166/EEC of 24 April 1972 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[1972]  OJ  L103;  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  [1984] OJ L8/17; 
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 
[1990] OJ L129/33; Directive 2000/26/EC Of 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  [2000]  OJ  L181/65;  Directive  2005/14/EC  of  The  European  Parliament  And  Of  The 
Council  of  11  May  2005  amending  Council  Directives  72/166/EEC,  84/5/EEC,  88/357/EEC  and 
90/232/EEC and Directive 2000/26/EC of the European Parliament and of the Council relating to 
insurance  against  civil  liability  in  respect  of  the  use  of  motor  vehicles  [2005]  OJ  L149/14.  The 
Directives  have  now  been  consolidated  into  a  new  Directive  2009/103/EC  of  The  European 
Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in 
respect of the use of motor vehicles, and the enforcement of the obligation to insure against such 
liability [2009] OJ L263/11. 
27 Dir 2009/103/EC Article 3 and 14.   
28 Ibid Article 9.  
29 Ibid Article 12 and 13.  

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involved in accidents outside their Member State of residence, known as visiting victims. 
Accordingly,  the  fourth  Directive  ensured  a  right  of  direct  action  against  the  motor 
insurer30 and, following amendment by the fifth Directive and clarification by the  Court 
of Justice of  the  European  Union (CJEU) also permitted visiting victims to bring such a 
direct action in the courts of their Member State of habitual residence.31 By harmonising 
minimum standards, the Directives were able to do away with national border checks on 
insurance  within  the  EU  and  to  begin  to  neutralise  the  disadvantages  faced  by  visiting 
victims  trying  to  obtain  compensation,  thus  supporting,  rather  than  hindering  the  free 
movement of people and vehicles within the EU.  

However,  there  remains  substantial  variation  in  the  schemes  for  establishment  of 
liability,32 and in the procedural rules which govern the bringing of claims, between the 
Member  States.  These  differences  make  the  determination  of  the  applicable  law 
important in the context of a cross border RTA. 

The  Rome  II  Regulation33  entered  into  force  on  11  January  2009  and  provides  uniform 
choice  of  law  rules  which  govern  the  determination  of  the  law  governing  a  non-
contractual  obligation  in  all  EU  Member  State  courts  apart  from  Denmark.  It  will 
determine  the  law  governing  most  claims  which  arise  out  of  cross  border  RTAs, 
including which rules of limitation will apply.34 

A  Commission  study  looking  at  Rome  II  and  the  specific  problems  faced  by  visiting 
victims  of  road  accidents,  along  with  the  options  for  improving  the  position  of  such 
victims,35  was  published  in  January  2009.36  It  looked  in  particular  at  the  levels  of 
compensation awarded in different Member States and at the limitation periods in force. 
The  study  identified  a  number  of  potential  problems  which  could  be  faced  by  visiting 
victims in relation to both levels of compensation and limitation periods. It suggested a 
variety of ways in which these problems might be overcome. The study does not provide 
an overall recommendation but in relation to limitation periods it concludes that: 

“A  degree  of  harmonization  of  European  limitation  periods  was  recommended  by  most  country 
experts.  It  seems  that  some  form  of  harmonization  at  the  European  level  is  the  only  way  of 
ensuring a degree of simplicity in the rules defining limitation periods.”37 

30 Now Article 18 Dir 2009/103/EC.  
31 See FBTO Schadeverzekeringen NV v. Odenbreit Case C- 463/06 [2007] ECR I-11321.  
32 The Directive does not affect rules relating to civil liability as stated in Article 20.  
33  Regulation  (EC)  No  864/2007  on  the  law  applicable  to  non-  contractual  obligations  (Rome  II) 
(2007) OJ C 343/7.  
34It is submitted that claims arising out of RTAs are likely to be classified as matters relating to tort 
at  the  Private  International  Law  level  in  accordance  with  the  reasoning  of  the  CJEU  in  C  548/12 
Marc Brogsitter v Fabrication de Montres Normandes EURL and Karsten Fräßdorf.   
35 Penultimate clause.  
36  Report, prepared by law firm Demolin Brulard Barthélémy for the Commission Compensation of 
victims of cross border RTAs in the EU: comparison of national practices, analysis of problems and 
evaluation 
victims 
border 
<http://ec.europa.eu/internal_market/insurance/docs/motor/20090129report_en.pdf>. 
Hereinafter referred to as ‘the Commission 2009 report’. 
37 Ibid at 241.  

improving 

position 

options 

cross 

the 

for 

of 

of 

PE 581.386 

24 

 
 
                                                           
Limitation Periods for Traffic Accidents  

Following publication of the study the Commission undertook two public consultations. 
The  first  addressed  both  levels  of  compensation  and  limitation  periods  and  asked 
stakeholders  and  other  interested  parties  to  comment  on  various  options  for  reform.38 
The  second,  in  a  similar  vein,  focused  on  limitation  periods  only.39  Responses  to  the 
consultations  were  mixed.  The  Commission  produced  a  summary  of  the  responses  to 
each  consultation  and  indicated  in  its  2010  report  on  the  implementation  of  the 
Stockholm programme40 that limitation periods for insurance claims arising out of cross 
border  traffic  accidents  would  be  addressed  in  a  new  Regulation.41  However,  there  has 
been no indication since then of what further action might be taken. In light of this, the 
European Parliament has indicated its intention to produce an own initiative proposal for 
the  purpose  of  harmonising  limitation  periods  for  the  victims  of  cross  border  RTAs. 42 
This report aims to facilitate that process. It demonstrates the undesirable consequences 
of complexity and obstacles to access  to  justice, that the  current  situation  generates and 
concludes that minimum standards harmonisation should be used to resolve the current 
difficulties.  

III  Report Structure and Methodology  

This report deals with a multifaceted issue which requires a number of complex areas of 
law to be brought together for consideration. The authors have utilised mainly doctrinal 
methods in order to provide a systematic account of the current situation with regard to 
rules  of  limitation  for  visiting  victims.  Accordingly,  the  report  consists,  in  the  main,  of 
analysis  of  data  which  has  already  been  published  in  the  form  of  reports  of  the  EU 
institutions,  reports  of  bodies  representing 
to  public 
consultations, as well as cases decided in both national and other courts, academic work 
published  in  books  and  scholarly  articles  and  legislative  provisions  in  the  form  of  the 
Treaties of the EU, secondary legislation of the EU and International Conventions.  

insurers  and  responses 

A  comparative  analysis  looking  at  the  domestic  rules  of  different  EU  Member  States, 
illustrates the complexity of the current situation. Data about existing rules of limitation 
is  primarily  drawn  from  an  empirical  study  conducted  by  the  Pan  European 
Organisation of Personal Injury Lawyers (PEOPIL) in preparation for the publication of a 
book  Personal  Injury  and  Fatal  Accident  Compensation  in  Europe,43  along  with  data  about 
limitation periods presented in the Commission 2009 report. 

In addition, owing to a complete lack of information or evidence on some issues, a small 
scale  empirical  survey  was  conducted  for  the  purpose  of  quantifying  some  of  the  costs 
generated by the current situation, as outlined below.  

38http://ec.europa.eu/internal_market/consultations/docs/2009/cross-border-
accidents/rome2study_en.pdf 
39 http://ec.europa.eu/justice/newsroom/civil/opinion/121031_en.htm.  
40  The  five  year  programme  adopted  by  the  European  Council  for  the  period  2009-2014.  See 
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3Ajl0034.  
41 European Commission  Delivering an area of freedom, security and justice  for Europe's citizen Action 
Plan Implementing the Stockholm Programme (2010) COM 171. 
42 See 2015/2087(INL).  
43 PEOPIL, Forthcoming. The empirical data is used with the kind permission of PEOPIL.   

EP 581.386 

25 

 
 
                                                           
European Added Value Assessment 

Given  time  and  financial  constraints  the  authors  consulted  with  practising  claimant 
lawyers, using existing networks provided by the Pan European Organisation of Personal 
Injury Lawyers (in short:  PEOPIL). This organisation has a European wide  membership 
of  practising  personal  injury  lawyers  some  of  whom  deal  with  cross  border  traffic 
accidents. A questionnaire was sent by email to members of the  organisation asking for 
information about: the numbers of cross border traffic accidents cases lawyers had dealt 
with in the last five years, how many of those cases gave rise to issues of limitation, how 
many cases gave rise to a need for expert foreign advice and how many additional hours 
were spent on cases owing to limitation issues.  

13  responses  from  lawyers  in  9  different  EU  Member  States  were  received.  This  gives 
some  valuable  data  for  use  in  this  report,  but  the  potential  for  sampling  error  is  very 
high.  In  the  absence  of  any  other  data,  the  figures  generated  by  the  consultation  are 
scaled up to give indications of annual numbers of relevant accidents in the EU and of the 
additional costs which might be incurred due to unfamiliar rules of limitation. However, 
the accuracy of these indications cannot be guaranteed.  
The report begins in Section 2 by providing a brief comparative overview of some of the 
main  features  of  limitation  laws  in  nine  EU  Member  States.  The  comparative  analysis 
highlights  the  differences  between  national  schemes  of  limitation  and  the  potential 
difficulties these differences can generate in cross border RTA cases.  

This section of the report is not designed to be a comprehensive account of the system of 
rules in each Member State, for which space does not allow. Instead the main features of 
schemes of limitation for tortious claims of eight Member States are set out in tables. This 
allows  for  comparison  of  those  Member  State  systems  and  provides  a  catalyst  for 
discussion of the  impact of the divergences on cross border victims. The Member States 
used  are:  Croatia,  England  and  Wales,  Germany,  Hungary,  Italy,  Luxembourg,  The 
Netherlands  and  Spain.  They  represent  a  spread  of  Member  States  in  a  geographical 
sense  and  also  encompass  a  range  of  different  cultural  and  legal  traditions.  The 
Commission  2009  report  contains  a  very  detailed  comparative  analysis  of  rules  of 
limitation in the majority of EU Member States. The analysis in this report does not aim 
to  replicate  the  work  done  in  the  Commission  report,  but  rather  it  aims  to  illustrate 
divergences and to articulate the difficulties those differences can cause.  

Section 3 considers the private international law position with regard to traffic accidents. 
Analysis of the main relevant provisions of the Brussels I (recast) Regulation,44 the Rome 
II  Regulation  on  the  law  applicable  to  non-contractual  obligations,45  the  Hague 
Convention  on  the  law  applicable  to  cross  border  RTAs46  and  the  Motor  insurance 
Directives47  reveals  which  courts  are  likely  to  take  jurisdiction  of  claims  arising  from 
cross  border  traffic  accidents  and  which  law  is  likely  to  apply  to  determine  the  action. 

44  Regulation  (EU)  1215/2012  on  jurisdiction  and  enforcement  of  judgements  in  civil  and 
commercial matters (recast) OJ L351/2.  
45 n12 above.  
46 Of 4 May 1971.  
47 n5 above.  

PE 581.386 

26 

 
 
 
                                                           
Limitation Periods for Traffic Accidents  

This analysis is used to reveal the likelihood of a visiting victim facing the application of 
a foreign limitation period.  

Section  4  explores  whether  a  process  of  harmonisation  of  rules  of  limitation  would 
respect the fundamental principles of subsidiarity and proportionality and whether there 
is  an  appropriate  legal  basis  for  such  action  in  the  Treaties.  The  various  options  with 
regard to harmonisation, put forward by the Commission in its 2009 report are analysed, 
along with the responses to those various options by the stakeholders who responded to 
the  Commission's  public  consultations,  and  the  views  expressed  in  academic  literature. 
Statistical data and the results of the empirical survey are used to  present indications of 
the  likely  number  of  traffic  accidents,  involving  a  visiting  victim,  occurring  annually  in 
the EU and in how many cases limitation issues will arise.  

Section  5  of  the  report  is  given  over  to  the  consideration  of  what  the  content  of 
harmonising  legislation  might  be.  A  minimum  standards  form  of  harmonisation  is 
proposed,  with  the  exact  contents  being  guided  by  an  analysis  of  existing  harmonised 
rules  of  limitation  in  the  field  of  RTAs,  as  well  as  harmonised  rules  for  passengers  of 
other modes of transport and for  product liability; general principles expounded by the 
ECtHR  and  the  CJEU  with  regard  to  rules  of  limitation;  and  existing  proposals  for 
harmonisation.  

The  analysis  leads  to  the  formulation  of  a  proposal  for  the  minimum  content  of 
harmonising legislation.  
Section  6  sets  out  the  added  value  of  EU  action  if  harmonisation  in  the  terms 
recommended is undertaken. The costs to victims of the current situation are highlighted 
here  and  quantification  of  them  in  monetary  terms  is  carried  out  where  possible. 
Quantification is done using data from the empirical survey, along with data on average 
hourly  legal  fees  in  the  EU  and  the  average  cost  of  expert  evidence,  as  set  out  in  the 
Commission  2009  report.  Figures  are  given  for  the  average  costs  associated  with  the 
uncertainty  and  unfamiliarity  of  foreign  applicable  rules.  Further  data  presented  in 
reports by a Europe wide insurance industry body and a UK governmental department 
regarding average claim values is also used to give some indication of the average costs 
per claim if the ability to claim is lost altogether.48  

48 See 6(a) below.  

EP 581.386 

27 

 
 
 
 
                                                           
European Added Value Assessment 

2. Rules of Limitation for Traffic Accidents in the EU49 

I 

Introduction 

There  are  wide-ranging  differences  among  European  countries  in  respect  of  rules  of 
limitation  for  traffic  accidents.  The  rules  may  relate  to  a  number  of  different  types  of 
claim  including  claims  made  against  the  party  responsible  for  the  accident,  the  injured 
parties' direct action against the insurer of the party responsible, or a claim made against 
the compensation body or guarantee fund responsible for the provision of compensatory 
payments. The divergences relate to the overall time limit, the beginning of the limitation 
period (the “dies a quo”), the procedural requirements for stopping the limitation period, 
suspension of the running of limitation periods, the protection of victims after  expiry of 
the limitation period, the discretion granted to the courts to extend limitation periods and 
the protection of minors and persons with disabilities. 

The differences which exist in respect of limitation periods as between the Member States 
may be an expression of national legal and cultural traditions in the  organisation of the 
legal  system.  They  may  reflect  constitutional  and  social  identity  and  arrangements  for 
wealth distribution.50 Rules  of limitation are thought to create  certainty,  particularly for 
the defendant, who should not have to face the indefinite possibility of a claim. They also 
address the problem that evidentiary difficulties will arise with the passage of time when 
documentary  evidence  may  have  been  destroyed  or  witnesses  can  no  longer  remember 
events  with  clarity.51  However,  how  these  policies  manifest  themselves  differs  between 
states, giving rise to differences in rules of limitation.  

II  Comparative Overview  

1.  Overall Time Limits 

With  regard  to  the  rules  governing  overall  time  limits,  there  are  significant  differences 
among the MS. Time-limits differ in length ranging from one year to up to 30 years. The 
relevant time limit is determined on the basis of a number of factors, including who the 
claim  is  made  against,  whether  there  are  related  criminal  proceedings  and  whether  the 
claim is considered to be tortious or contractual, at the substantive level. As will be seen 
from the table below, no two Member States operate exactly the same basic time limit. A 

49  The  information  contained  in  this  Chapter  about  national  systems  comes  from  the  following 
studies:  Commission  2009  report  n15  above;  M.  Bona,  P.  Mead  And  S.  Lindenbergh  (eds)  Fatal 
Accidents  and  Compensation  of  Secondary  Victims  in  Europe  (London,  2005);  M.  Bona  and  P.  Mead  
(eds)  Personal  Injury  Compensation  in  Europe  (Deventer,  2003).  This  Chapter  is  also  based  on  the 
updated  information  provided  by  the  national  reports  that  will  be  published  in  the  forthcoming 
book Personal Injury and Fatal Accidents Compensation in Europe (PEOPIL, forthcoming).  
50 Tulibacka ‘Europeanization of Civil Procedures: In Search of a Coherent Approach’ (2009) CMLR 
1527 at 1533.  
51 A. McGee Limitation Periods (Sweet and Maxwell 2010) p14.   

PE 581.386 

28 

 
 
 
 
                                                           
Limitation Periods for Traffic Accidents  

detailed  knowledge  of  the  applicable  rules  is  required  to  answer  this  most  basic 
question.52 

It  should  also  be  noted  that  in  the  field  of  RTAs  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.  Furthermore,  it  may  also  take  considerable  time  to  identify  which  claims 
representative53 or insurer should deal with the case.  For victims in a coma and victims 
with  severe  injuries  it  may  take  a  long  time  before  the  full  extent  of  their  damage  is 
known. 

For  example,  the  table  below  shows  that  in  Italy  the  limitation  period  applying  to  RTA 
claims  is  2  years.  However,  this  description  does  not  correspond  to  what  happens  in 
practice under Italian law. Whenever there is a personal injury or a fatal accident, Italian 
courts  apply  the  longer  time-limits  provided  by  the  Criminal  Code.  Hence,  a  bodily  or 
mentally  injured  person  can  rely  on  at  least  a  six  year  limitation  period  and  secondary 
victims on an even longer time-limit (from 14 to 20 years).54 

In  some  jurisdictions  there  is  also  a  general  distinction  between  short  (“subjective”, 
“relative”,  or  “minimum”)  periods  of  limitation,  whose  expiry  depends  on  various 
factors  including  the  victim's  subjective  knowledge  and  which  are  subject  to  temporary 
interruption  or  suspension,  and  long-stop  (or  “objective”,  “absolute”,  “maximum”) 
limitation  periods,  beyond  which  no  claim  can  be  brought,  regardless  of  the  victim's 
knowledge of the injuries or of the identity of the wrongdoer. Such long-stop limitation 
periods are generally conceived of as absolute barriers.  

52 The following country reports were of valuable assistance in the preparation of Table 1 below: A. 
Sihtar and I. Vretenar ‘Personal injury and fatal accidents compensation in the Republic of Croatia’;  
P  Kuhn  ‘Personal  Injury  Compensation  in  Germany’;  S.  Pavlakis-Moschou  ‘Personal  Injury  and 
Fatal  Accidents  Compensation  in  Greece’;  Dr.  T.  Pataky  ‘Personal  injury  and  fatal  accident 
compensation in Hungary’; Arsène Kronshagen & Philippe Wadlé ‘Personal Injury Compensation 
In The Grand-Duchy Of Luxembourg’; S. Lindenbergh  and R. Verburg ‘Personal Injury and Fatal 
Accidents Compensation in The Netherlands’; M. Martín-Casals & J. Solé Feliu ‘Personal Injury and 
Fatal  Accidents  Compensation  in  Spain’  all  in  Personal  injury  compensation  in  Europe  (PEOPIL 
Forthcoming);  
53 See 3(a) below on the role of the claims representative.  
54 See M. Bona La responsabilità civile per i danni da circolazione di veicoli, (Milano, 2010) pages 694-695. 

EP 581.386 

29 

 
 
 
 
 
                                                           
European Added Value Assessment 

Overall Time Limits – Non-Contractual Obligations  

Germany 

Hungary 

Italy 

3 years  
The  Bürgerliches 
Gesetzbuch,  (BGB) 
s195 

5 years 
S6:22(1) 
Code  

5  years  Art  2946 
Civil Code 

Civil 

Luxembou
rg 
30 years 
Art 
Civil Code  

2262 

The Netherlands 

Spain 

5 years  
Art  3:310(1)  Dutch 
Civil Code (DCC) 

1 year  
Art 
1968 
Civil Code  

(3  years  if  result 
from 
hazardous 
operation  eg  use 
of motor vehicle) 
S6:538 Civil Code  
no 

or 2 years for claims 
arising out of RTAs 
Art 2947 Civil Code  

no 

no 

Yes - 20 years  
Art 3:310(1) DCC 

No 

Member State 

Croatia 

General  Time 
Limit  

3 years  
Civil  Obligations 
Act (COA) Art 230 

England/Wal
es 
if 
years 
3 
personal  injury 
Limitation  Act 
1980 (LA) s11 
6 years if notLA 
s2 

Absolute  Time 
Limit  

Yes  –  5  years  COA 
Art 230 

no 

Different 
period for claim 
against insurer 

no 

no 

10 years (including 
for  motor  insurer 
claims). 
The 
Pflichtversicherun
gsgesetz s3(1)3 
 30 
personal 
claims. BGB s199 
no 

for 
injury 

years 

None 

none 

of 

Impact 
Criminal 
Proceedings  

Period 
longer 
is 
where  the  damage 
arises  as  a  result  of 
a  criminal  offence 
criminal 
and 
are 
proceedings 
subject  to  a  longer 
period.  
COA Art 231 

the 

         Table 1 – Overall Time Limits 

PE 581.386 

  30 

no 

no 

Yes  –  period  is  5 
years  
S6:533(1) 
Code  

Civil 

Period 
longer 
is 
where  the  damage 
arises  as  a  result  of 
a  criminal  offence 
criminal 
and 
are 
proceedings 
subject  to  a  longer 
period. 

the 

Yes – 3 years 
Art 
44(1) 
Law  of  27th 
July 1997.  

none 

No 

None  

10  Wet 

Yes – 3 years  
Art 
Aansprakelijkheid
sverzekering 
Motorrijtuigen 
(WAM) 
Period 
longer 
is 
where  the  damage 
arises as a result of 
a  criminal  offence 
and  the  criminal 
are 
proceedings 
subject  to  a  longer 
period.  Art  3:310 
(4) 

 
 
 
 
 
 
 
 
 
 
 
 
 
  
 
 
 
 
Limitation Periods for Traffic Accidents  

2.  Beginning of the limitation period: the dies a quo.  

Once the applicable time-limit has been identified, it is then necessary to assess when it 
starts  to  run.  European  jurisdictions  address  these  types  of  issues  in  different  ways,  as 
demonstrated in the table below. In many states limitation periods can run from the date 
of the accident or from the victim's “date of knowledge”, which may be after the date of 
the  material  occurrence  of  the  damage.  However,  considerable  differences  exist  in 
relation to the  way of conceiving the concept itself of the “date of knowledge”. In some 
countries  the  notion  is  sufficiently  broad  and,  in  particular,  it  is  not  limited  only  to 
knowledge  of  the  damage  sustained,  but  other  factors  may  also  be  taken  into 
consideration such as the knowledge of the attributability of the injuries to the conduct of 
the defendant and the knowledge of the identity of the person against whom a claim can 
be made. 

In  some  jurisdictions  the  concept  of  “date  of  knowledge”  is  generally  limited  to 
knowledge of the extent of the injury sustained while other factors such as the identity of 
the defendant or the knowledge of attributability of the damage to the defendant are not 
generally taken into account. It can be observed that in all legal systems the courts retain 
some discretion as to the interpretation of the concept of the “date of knowledge”. 

It  is  clear  that  in  calculating  the  relevant  limitation  period,  at  present  it  is  important  to 
have local knowledge of the way in which the date of knowledge concept is interpreted. 
This is a daunting task requiring expert advice, usually from a local lawyer. It should also 
be noted that there is some variation in the effect of limitation rules on minors. In some 
Member States minors are protected and time does not run against them until they reach 
the age of majority. In others time may run where the minor has a representative. In some 
MS minors are not protected by special rules.  

EP 581.386 

31 

 
 
 
European Added Value Assessment 

Member State   Croatia 

Time 
From 

Runs 

awareness  of 
Date 
existence  of  damage 
and  identity  of  person 
the 
against  whom 
claim can be brought.  

COA Art 215 

England/Wales  

Start of Limitation Period  
Hungary 

Germany 

From 
occurrence  of 
the damage.  

s6:22,  s6:532, 
s6:533  Civil 
Code  

Date of accident or 
date  of  knowledge 
injury 
that 
that 
significant, 
injury  attributable 
to a breach of duty 
and  the  identity  of 
the  person  against 
whom  a  claim  can 
be brought.  
 LA s14(1) 

the 
The  end  of 
calendar  year 
in 
which  the  right  to 
claim  arose  and 
where 
the 
claimant  knew  of 
the  circumstances 
giving  rise  to  the 
claim,  as  well  as 
the  identity  of  the 
person 
against 
who  the  claim  can 
be brought. 

Arrangements 
for Minors  

no 

If 
legal 
representation  then  a 
limitation  is  2  years 
the 
the  date 
from 
claimant 
reaches 
majority.  

COA Art 239 

Limitation 
runs 
from  the  date  at 
which the claimant 
reaches majority.  
as 
S38 
amended  by 
the 
Mental  Capacity 
Act 2005.  

LA 

S199 BGB  
No 
arrangements  

special 

No 
special 
arrangements  

Table 2 – The Start of the Limitation Period 

PE 581.386 

  32 

Italy 

Luxembourg 

The Netherlands   Spain 

Date  on  which 
the 
substantial 
consequences  of 
impairment 
the 
become manifest.  
Supreme  Court, 
Civil 
Third 
24 
Division, 
February 
1983, 
no. 1442, in Resp. 
civ.  prev.,  1983, 
627. 

of 
Date 
accident 
or 
Date  the  loss  is 
revealed  to  the 
claimant  if  that 
person  had  no 
knowledge  of 
the accident. 

Art  22262  Civil 
Code  

Date  awareness 
of  damage  and 
of 
identity 
against 
person 
whom  the  claim 
can be brought. 

 Art 3:310 DCC 

of 
Date 
knowledge  of 
existence 
of 
harm,  scope  of 
it 
the 
and 
identity  of  the 
person  against 
the 
whom 
claim  can  be 
brought.  

1968(2) 

Art 
Civil Code  

Limitation  same 
as for adults.  

special 

No 
arrangements 

Limitation runs 
from  the  date 
at  which 
the 
claimant 
reaches 
majority.   

Art  2252  Civil 
Code 

Limitation 
is 
suspended  until 
a 
legal 
representative  is 
appointed 
and 
for  six  months 
after,  or  for  six 
months  after  the 
claimant  reaches 
the 
of 
age 
majority. 
 Art  2942  Civil 
Code 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Limitation Periods for Traffic Accidents  

3.  Substantive  and  procedural  requirements  to  stop  the  running  of 

the limitation period. 

Various  means  for  the  interruption  of  time-limits  have  been  developed  in  Europe.  The 
Commission  2009  report  identified  11  different  methods  in  use.55  This  gives  rise  to  a 
significant  level  of  divergence  among  MS  and  can  result  in  complexity  and  uncertainty 
for victims and their advisors when trying to navigate foreign rules.  

All  jurisdictions  provide  for  the  interruption  of  limitation  periods  where  the  defendant 
acknowledges the claimant's right. Interruption may also occur when the claimant takes 
the  initiative  to  claim  for  damages.  There  are  two  basic,  but  opposite,  approaches  in 
relation to the fundamental requirements of such an initiative. The claimant can interrupt 
the limitation period either by sending a letter of claim to the defendant or his insurer, or 
by issuing court proceedings. These basic methods are reflected in the table below for the 
purposes of illustration.  

It  should  be  noted  however,  that  there  may  be  differences  between  MS  as  to  what 
information a letter of claim must contain and whether notification of the relevant party 
is  sufficient  or  whether  there  needs  to  be  an  acknowledgement  from  that  party  before 
interruption  is  effective.56  There  are  also  differences  concerning  whether  court 
proceedings  must  be  issued  or  also  served  on  the  defendant.57  This  has  obvious 
implications for visiting victim claimants and their legal representatives, who will not be 
familiar with the requirements of the applicable law.  

55 Commission 2009 report n15 above at p208 – 218.  
56 Ibid.  
57 Ibid.  

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Table 3 – Interruption of the Limitation Period  

Member State   Croatia 

England/Wale
s  

Interruption of the Limitation Period  

Germany 

Hungary 

Italy 

Luxembourg 

The Netherlands   Spain 

Basic  Method 
of interruption 

Acknowledgemen
t  of  the  debt  by 
the debtor 
Or  
Issuing 
proceedings 
before  a  court  or 
other 
competent 
body.  
Art 240-244 COA  

of 

the 
the 

Acknowledge
ment  of 
debt  by 
debtor 
Or  
Issuing 
proceedings 
before a court. 

of 

for 

See 
example 
Lefevre  v  White 
1 
[1990] 
Lloyd's  Rep. 
569.  

Limitation  is  not 
but 
interrupted 
suspended  by  the 
commencement  of 
negotiations, court 
proceedings or out 
of 
court 
proceedings.  At 
the  end  of  six 
months  after  the 
conclusion  of  the 
action  taken,  the 
limitation  period 
restarts.  
Art 203 BGB 

the 
the 

Acknowledge
ment  of 
debt  by 
debtor 
Or  
Issuing 
proceedings 
before a court. 
Civil 
S6:25 
Code  

of 

Acknowledgeme
nt of the debt by 
the debtor 
Or  
Letter of claim to 
the defendant 
Or  
Issuing 
proceedings 
before a court. 

of 

Art 2943 (4) 
Art 1219 
Civil Code  

of 

Acknowledgeme
nt of the debt by 
the debtor 
Or  
Issuing 
proceedings 
before a court or 
other  competent 
body. 
Or  
a 
Making 
claim 
directly 
against  a  third 
party insurer.  

of 

Art 2244 and Art 
2248 Civil Code  

PE 581.386 

  34 

of 
Any 
act 
of 
recognition 
the  debt  by  the 
debtor  
Or 
Issuing  of  court 
proceedings  
Or 
Any 
negotiations 
between 
an 
insurer  and  an 
injured party. 

Art  3:316  –  3:319 
DCC  

Any act of recognition 
of  the  debt  by  the 
debtor  
Or 
Issuing 
of 
proceedings  
Or 
An extra judicial claim 
by the creditor. 

court 

Art  1972  Civil  Code. 
See  also  cases    SSTS 
[RJ 
20.11.2007 
2007\10];  19.12.  2008 
STS 
[RJ 
2009\24]; 
24.3.2006 
[RJ 
2006\1819]) 
 SSTS  21.7.2004 
[RJ 
2004\4874],  27.9.2005 
[RJ 2005\7152]. 

 
 
 
  
 
 
 
 
 
 
Limitation Periods for Traffic Accidents  

III  Conclusion  

As  stated  above,  the  comparative  overview  provided  here  is  not  designed  to  be 
comprehensive in nature, but the information presented clearly demonstrates the level of 
complexity involved in rules of limitation. There can be issues in understanding which is 
the  applicable  overall  time  limit,  when  and  how  time  begins  to  run  and  how  this  is 
suspended  or  interrupted.  National  lawyers  need  in-depth  knowledge  of  the  relevant 
rules  in  order  to  give  accurate  advice  in  any  given  circumstance.  The  difficulties  which 
arise when the rules are foreign to the victim, the victim's legal advisers, and to the court, 
are  obvious.  Where  issues  of  limitation  arise  specialist  local  legal  advice  is  likely  to  be 
required. At this point, it is vital to understand which nation's rules to apply. In a cross 
border scenario, the rules of private international law are crucial.  

3 Rules of Private International Law  

When  a  road  accident  occurs  and  damage  is  incurred  by  someone  who  is  not  normally 
resident in the country in which the accident takes place, it must be determined in which 
jurisdiction  a  claim  may  be  brought  and  which  law,  including  which  law  of  limitation, 
will  govern  the  claim.  In  this  section  the  relevant  legislative  measures,  dealing  with 
issues of jurisdiction and applicable law, will be examined and the likely limitation issues 
will be highlighted. 58  

I  Jurisdiction 

In  the  EU,  the  issue  of  jurisdiction  for  RTAs  occurring  within  the  EU,  where  the 
defendant  is  domiciled  in  the  EU,  is  primarily  governed  by  the  Brussels  I  recast 
Regulation.59  The  claimant  has  an  option  under  the  Regulation.  If  the  claim  is  brought 
against the tortfeasor60, the claim may be brought either in the courts of the defendant's 
domicile,61 or, as a matter relating to tort,62 in the courts for the place where the harmful 

58 It should be noted that only the main provisions of the main relevant instruments are considered 
here.  Specialist  works  should be  consulted  for  more  in-depth  analysis of  the  instruments and  the 
issues discussed. See for example, R. Merkin and M Hemsworth The Law of Motor Insurance (2edn, 
sweet  and  Maxwell  2015);  A.  Dickinson  The  Rome  II  Regulation  (OUP  201);  J.  Papettas,  ‘Direct 
Actions  Against  Insurers  of  Intra  Community  Cross  Border  Traffic  Accidents:  Rome  II  and  the 
Motor  Insurance  Directives’  (2012)  8  Journal  of  Private  International  Law  297;  F.  Marongiu 
Buonaiuti Le obbligazioni non contrattuali nel diritto internazionale privato (Giuffrè, 2013); A. Dickinson 
and E. Lein The Bruissels I Regulation Recast (OUP 2015); A. Briggs Civil Jurisdiction and Judgments (6th 
edn, Informa 2015).  
59  Regulation  (EU)  1215/2012  on  jurisdiction  and  enforcement  of  judgements  in  civil  and 
commercial matters (recast) OJ L351/2 
60 The ‘at fault’ driver or operator of the vehicle which has caused damage. 
61 Brussels I (recast) n37, Article 4.  
62 It is submitted that claims arising out of RTAs are likely to be classified as matters relating to tort 
at  the  Private  International  Law  level  in  accordance  with  the  reasoning  of  the  CJEU  in  C  548/12 
Marc Brogsitter v Fabrication de Montres Normandes EURL and Karsten Fräßdorf.  

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event  occurred.63  In  a  traffic  accident  scenario  this  is  the  court  of  the  place  where  the 
accident occurred.  

Under both of these options, a visiting victim will be bringing an action in a court which 
is outside of their country of residence and it has been recognised that organising a claim 
under  an  unfamiliar  legal  system,  possibly  in  a  foreign  language  and  from  another 
country, can be particularly onerous and a daunting prospect.64 For this reason the fourth 
Motor  Insurance  Directive  (MID)65  (as  amended  by  the  fifth  MID66)  made  a  number  of 
changes to the position of the visiting victim of a road accident.  

The  fourth  MID  importantly  ensured  that  a  direct  right  of  action  against  the  insurer, 
covering the person liable for the loss, is available in all Member States.67 Article 4 of the 
fourth Directive provides that insurance undertakings must appoint a representative who 
can handle and settle claims  on  their  behalf, in  all  Member  States other than  the  one  in 
which  they  received  their  official  authorisation.  This  representative  will  be  able  to  deal 
with any claim from a victim of a cross border RTA.68 The representative must be capable 
of examining cases in the official language of the state of residence of the victim.  

This provision enables victims to deal with a representative of the insurance company in 
their own country and in their own language. This was reiterated again recently by the 
CJEU.  In  the  case  Spedition  Welter  GmbH  v  Avanssur  SA69,  it  was  held  that  the  powers 
granted to a claims representative under the Directive must include the power to accept 
service of judicial documents on behalf  of the  insurer. The court found that if  this were 
not the case, the aim of the provisions of the fourth MID of making it easier for visiting 
victims to claim, particularly by allowing them to proceed in their own language, would 
be deprived of its effectiveness.70 

To complete the package of measures which would overcome the perceived obstacles to a 
third party victim bringing a claim, the fourth MID (as amended by the fifth MID) relied 
upon  a  particular  interpretation  of  Arts  9(1)(b)  and  11(2)  of  Brussels  I.  Recital  16a 
(inserted by the fifth MID) states: 

Under  Article  11(2)  read  in  conjunction  with  Article  9(1)(b)  of  Council  Regulation  (EC)  No 
44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments 

63 Brussels I (recast) n38, Art 7(2).  
64 See the Proposal for the Fourth MID Proposal for a EUROPEAN PARLIAMENT AND 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  and  amending  Directives  73/239/EEC  and 
92/49/EEC(Fourth Motor Insurance Directive) COM (97) 510 final, p2.  
65 Directive 2000/26/EC of the European Parliament and of the Council of 16 May 2000,  [2000] OJ 
L181/65.   
66 Directive 2005/14/EC of the European Parliament and of the Council of 11 May 2005, [2005]  OJ 
L149/14. 
67 Article 18 of the consolidated Directive 2009/103/EC.  
68 Now Article 21 of Dir 2009/103/EC.  
69  C-306/12.; ECR [2013] 00000.  
70 Ibid at [24].  

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Limitation Periods for Traffic Accidents  

in  civil  and  commercial  matters,  injured  parties  may  bring  legal  proceedings  against  the  civil 
liability insurance provider in the Member State in which they are domiciled. 

 It  was  not  clear  that  the  terms  contained  in  Article  9(1)(b)  (policyholder,  insured  or 
beneficiary) were capable of extending to a third party direct claimant however, until this 
position  was  confirmed  by  the  CJEU  in  the  case  of  Odenbreit.71  In  this  case  the  effect  of 
Article 11(2) was felt to be to widen the category of claimants that Article 9(1)(b) applied 
to,  so  as  to  include  third  party  victims,  on  the  basis  that  one  purpose  of  the  provisions 
was to guarantee more favourable protection to weaker parties.  

These  measures  effectively  ensure  that  all  aspects  of  a  direct  claim  against  a  third  part 
motor  insurer can be dealt with from the  state of residence of the  victim.  However, the 
claimant again has a jurisdictional choice where the claim is brought directly against an 
insurer.  The  claim  can  be  brought  in  the  courts  of  the  victim's  country  of  residence,  or 
under  Article  11(1)(a)  of  the  Brussels  I  recast  Regulation,  in  the  Member  State  of  the 
insurer's domicile. It is to be anticipated (and recently decided cases also support72) that 
the majority of claimants will choose to bring their claims before the courts of their state 
of  residence  for  reasons  of  cost  and  convenience,  as  well  as  for  the  comfort  of  a  more 
familiar legal environment and more readily accessible legal advice. However, it should 
be noted that this is not universally true.73  

Lastly, in the  case  of uninsured or  unidentified  tortfeasors, Article  1 of the  second MID 
along  with  Articles  6  and  7  of  the  fourth  MID  stipulate  that  each  MS  must  establish  a 
compensation  body  to  act  as  a  guarantee  fund,  meeting  the  claims  of  victims  of  such 
tortfeasors,  as  well  as  claims  by  victims  who  have  not  received  timely  responses  from 
either  an  insurer  or  an  insurer's  claims  representative.  In  each  of  these  cases  the  victim 
may make a claim to the body established in their country of residence. Where the victim 
is in dispute with the compensation body, there is a right to bring an action against the 
body  before  the  courts  of  the  state  of  the  body,  which  will  also  be  the  state  of  habitual 
residence of the victim.74  

II  Applicable Law  

Among the  EU Member  States (with the exception  of Denmark) the  law applicable  to  a 
claim arising out of an RTA is determined, in cross border cases, through the application 
of the Rome II Regulation. The Regulation entered into force on the 11 January 2009 and 
it  unifies  the  Member  State  rules  on  the  law  applicable  to  non-contractual  obligations. 

71 FBTO Schadeverzekeringen NV v. Odenbreit Case C- 463/06 [2007] ECR I-11321.  
72  See  for  example:  Vann  v  Ocidental-Companhia  De  Seguros  SA  [2015]  EWCA  Civ  572;  Winrow  v 
Hemphill [2014] EWHC 3164 (QB); Hyde v SARA Assicurazioni SPA [2014] EWHC 2881 (QB); X v Y  
[2014] I.L.Pr. 30; Cox v Ergo Versicherung AG (formerly Victoria) [2014] UKSC 22.  
73  See  for  example  the  recent  case  of  Bianco  v.  Bennett  [2015]  EWHC  626  (QB)  where  an  Italian 
claimant  brought  a  claim  against  an  English  insurer  of  an  English  registered  vehicle  before  the 
English courts in respect of an accident which occurred in England. 
74 See C-541/11: Order of the Court (Fourth Chamber) of 17 January 2013 (request for a preliminary 
ruling from the Vrhovno sodišce  - Slovenia) - Jožef Grilc v Slovensko zavarovalno združenje GIZ 
OJ C 79, 16/03/2013 p. 2.  

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However,  Art  28  of  Rome  II  ensures  that  the  application  of  international  conventions, 
which  lay  down  conflict  of  laws  rules  in  relation  to  non-contractual  obligations  and  to 
which one or more Member States were parties at the time of adoption of the Regulation, 
are not prejudiced. Article 28 ensures that the Hague Convention on the Law Applicable 
to Traffic Accidents will continue to apply in the courts of those Member States which are 
signatories to it and this will preclude the application of any measure of Rome II dealing 
with the same issue. The Regulation and the Convention take different approaches to the 
question of applicable law and it is possible that the choice of law outcome  will also be 
different in some circumstances 

1.  Rome II 

Under Rome II there are no rules specific to RTAs with the result that the law applicable 
to  a  claim  arising  out  of  such  an  accident  will  usually  be  determined  by  Art  4  of  the 
Regulation.75  Art  4  is  relatively  straight  forward  for  traffic  accident  cases.  It  provides 
under Art 4(1) that the applicable law will be that of the place where the direct damage 
occurred.  Thus,  it  is  not  to  be  determined  on  the  basis  of  any  indirect  damage  which 
might arise.76 This is reinforced by Recital 17. Article 4(1) will in most cases designate the 
law of the place of the RTA, this being the place where the direct damage occurs.  

The rule in Art 4(1) is subject to two exceptions. Art 4(2) provides that where the parties 
share  habitual  residence  the  law  of  that  state  will  apply.  A  further  exception  to  both  of 
the rules in Art 4(1) and 4(2) is contained in Art 4(3). This rule provides that where it is 
clear, from all the  circumstances,  that the  tort is  manifestly  more closely connected to a 
country other than that provided for under Art 4(1) or 4(2), the law of that country shall 
apply. Use of the word ‘manifestly' in the Article indicates that there is a high threshold of 
close connectivity which must be met before the exception will be triggered.77 

Article 15 of Rome II provides a non-exhaustive list of issues to which the applicable law 
will apply. It determines the scope of the applicable law. Article 15 makes clear that the 
designated law will determine, amongst other things, the basis and extent of liability, the 
grounds  for  exemption  from  liability,  the  existence  and  assessment  of  damages,  who  is 
entitled to compensation, liability for the acts of another person and, importantly for the 
purposes of this study, the applicable law will determine the rules on limitation.78 
If we take a common example of a cross border road accident, whereby an EU citizen is 
injured in a car accident whilst on holiday in another Member State, by a driver resident 
in that  state, Rome  II  will  often produce the  outcome that the  applicable  law to  a claim 
arising out of the accident, is the law of the place of the accident (lex loci damni). It will be 
less  common  to  see  the  exceptions  applying,  or  to  find  that  an  agreement  about 

75  An  attempt  by  the  European  Parliament  to  insert  a  traffic  accident  specific  rule  during  the 
legislative process of Rome II was unsuccessful. See the Report on the proposal for a Regulation of 
the  European  Parliament  and  of  the  Council  on  the  law applicable  to  non-contractual  obligations 
Rome II 27.6.2005,A6-0211/2005 FINAL. 
76 Case C-350/14 Lazar v Allianz SpA. [2015] ECR 00000  
77  The  Commission,  in  its  original  proposal  for  Rome  II  was  clear  that  the  application  of Art  4(3) 
should remain 
exceptional. See COM (2003) 427 FINAL, 12. 
78 Specifically Art 15 (h).  

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Limitation Periods for Traffic Accidents  

applicable  law  had  been  reached  between  the  parties.79  However,  there  remains  some 
uncertainty  about  how  and  when  the  exceptional  rules  of  Article  4  will  apply.  As  such 
there is potential for the issue of applicable law to remain contentious under Rome II.80  

2. 

 Hague Convention  

Thirteen  EU  Member  States  are  signatories  to  the  Hague  Convention  on  the  Law 
Applicable  to  Traffic  Accidents.81  Under  Article  28  of  Rome  II  these  countries  can 
continue  to  apply  the  Hague  Convention  to  claims  arising  out  of  cross  border  traffic 
accidents,  in  place  of  Rome  II.  Indeed,  the  signatory  states  notified  the  European 
Commission that they intended to continue to apply the Hague Convention in derogation 
from Rome II.82  

The French Supreme Court has recently confirmed that, in its view, since the Convention 
was  not  only  concluded  between  EU  Member  States,  but  also  between  other  third 
countries,  Article  28(2)  of  Rome  II  would  not  apply  to  exclude  the  application  of  the 
Convention, such that the Convention will take precedence over Rome II.83  
The  policy  of  the  choice  of  law  rules  in  the  Convention  is  quite  different  to  that  under 
Rome II. The Convention contains a basic rule in Article 3, which designates as applicable 
the law of the place of the accident. It can be noted that the basic rule will, by and large, 
produce the  same  result as Art  4(1) of Rome  II since, as already stated, the  place where 
the damage arises is likely to be the place of the accident in a cross border traffic accident. 
However,  under  the  Convention  this  rule  is  then  subject  to  a  cascading  system  of  rigid 
exceptions. 

The  exceptions  to  the  basic  rule  are  contained  in  Articles  4,  5  and  6  of  the  Convention. 
Article  4  provides  that  the  law  of  the  state  of  registration  of  the  vehicle  shall  apply  to 
claims  made  by:  the  driver,  owner  or  other  person  having  control  of  the  vehicle;  by 
passenger  victims  who  are  habitually  resident  in  a  country  other  than  that  where  the 
accident  occurred;  and  by  persons  outside  of  the  vehicle  who  are  habitually  resident  in 
the  country  of  registration  of  the  vehicle.84  This  is  so  in  all  accidents  involving  one 
vehicle85 (where a vehicle collides with a tree for example) and in accidents involving two 
or  more  vehicles  if  all  the  vehicles  concerned  are  registered  in  the  same  state.86  If  those 
vehicles are registered in different states then the general rule in Art 3 will be applicable. 
Under  Article  5  the  law  designated  by  either  Art  3  or  4  in  respect  of  claims  made  by  a 
passenger will also govern any claims for damage to property being carried in the vehicle 

See 

response 

the  Commission 

2012  Consultation 

by  A.  Dickinson 

79 Agreements as to applicable law are governed by Art 14 of Rome II.  
80 
http://ec.europa.eu/justice/newsroom/civil/opinion/121031_en.htm. 
81  Austria,  Belgium,  Croatia,  Czech  Republic,  France,  Latvia,  Lithuania,  Luxembourg,  The 
Netherlands, Poland, Slovenia, Slovakia and Spain 
82  See  Notifications  under  Article  29(1)  of  Regulation  (EC)  No  864/2007  on  the  law  applicable  to 
non- contractual obligations (Rome II) (2007) OJ C 343/7. 
83 Societe AXA France IARD, Re Unreported April 30, 2014 (Cass (F)) 
84 Article 4(a). 
85 Ibid.  
86 Article 4(b) 

at 

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European Added Value Assessment 

belonging to that passenger. Claims for any other goods being carried in the vehicle will 
be governed by the law designated by Art 3 or 4 in respect of claims by the owner.  

Both the general rule and the exceptions are based on the need to apply a law which will, 
in the majority of cases, accord with the expectations of the parties and be the law of the 
place where the majority of connecting factors converge.87 For example, in a one vehicle 
accident brought by the vehicle owner against the driver for property damage, the law of 
the  place  of  registration  of  the  vehicle  will  likely  accord  with:  the  habitual  residence  of 
the  owner,  the  place  of  establishment  of  the  insurer,  the  place  where  the  insurance 
contract  was concluded, the  law which  governs the  insurance contract and  possibly  the 
habitual residence of the driver. 

Of overriding importance in the construction of rules for the Convention was the notion 
that, bearing in mind that most accidents are resolved outside of the litigation process,88 
those rules should be easy and straightforward to apply.89 It can be noted that in trying to 
ensure that the resolution of claims can be achieved quickly and easily it is the law which 
corresponds  to  the  law  under  which  the  insurer  operates,  which  is  designated  by  the 
exceptions.  This  was  acknowledged  as  being  more  favourable  to  the  insurer  who  can 
process  the  claim  in  accordance  with  familiar  laws,  the  consequent  effect  being  that 
claims could be settled more expeditiously.90 This approach is in contrast to that of Rome 
II  where  the  aim  is  to  find  a  solution  which  balances  the  interests  of  the  parties.  It  also 
contrasts with the MID which seeks to favour and protect the victim as discussed above. 

Article  8  of  the  Convention  provides  for  those  matters  which  the  applicable  law  will 
apply  to  and  is  very  similar  in  scope  to  Article  15  of  Rome  II.  Again,  it  is  important  to 
note that the applicable law will determine the rules of limitation which will apply to the 
bringing of a claim. Regardless of which Member State court proceedings are brought in.  

Again  under  the  Hague  Convention,  the  applicable  law  in  many  circumstances  will  be 
the law of the place of the accident. It is even more exceptional for another law to apply 
to claims given that the shared habitual residence of the parties does not, of itself, mean 
that a different law will apply.91  

87 See E. Essen, Explanatory Report on the Convention on the Law Applicable to Traffic Accidents  (1970) 
available at http://www.hcch.net/upload/expl19e.pdf, p3 and 15. 
88 See in relation to the English system, R. Lewis ‘Insurance and the Tort System’ 25 LS (2005) 85 at 
88. Also see the General Report of Mr. E.W. Essen, in Conference de La Haye de Droit International 
Prive, "Actes et Documents de la XIN Session," 1970, t.III, 200 at 206 in respect of evidence presented 
by the Swiss delegation to the eleventh session of the Hague Conference which showed that out of 
1000 traffic accident cases insurers settled 995 out of court. 
89 Supra n64 above. 
90  See  Report  Of  United  States  Delegation  To  Eleventh  Session  Of  Hague  Conference  On  Private 
International 
Law [April 1969] 8 International Legal Materials (1969)785 at 802. 
91 As was the case in Societe AXA France IARD, Re Unreported April 30, 2014 (Cass (F)).  

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Limitation Periods for Traffic Accidents  

III  Private International Law Outcomes 

In  combination,  the  rules  on  jurisdiction  along  with  rules  on  choice  of  law  can  have  a 
routinely difficult effect in practice. The majority of cross border road accident claimants, 
who are resident in the EU, are likely to make use of the ability to bring an action in their 
state of residence. But in most cases, this will lead to the court of that state applying the 
law  of  another  Member  State.  Some  practical  examples  will  help  to  illustrate  this  point 
further: 

Table 4 – PIL Outcomes  
Accident 

Action 

Jurisdiction 

Italian  pedestrian 
knocked  down  and 
seriously injured in 
London92  

Direct action 
against the English 
third party motor 
insurer  

French passenger of 
a  French  owned 
and 
car 
insured 
injured by the fault 
of the French driver 
upon collision with 
a  Spanish  car  in 
Spain93 
English 
cyclist 
fatally  injured  in  a 
a 
collision  with 
Spanish  registered 
and  insured  car  in 
Spain. 94 

Direct 
action 
against  the  French 
third  party  motor 
insurer  

Direct 
action 
against  the  Spanish 
third  party  motor 
insurer  

English  pedestrian 
seriously injured in 
Polish 
by 
and 
registered 

a 

Direct 
action 
against  the  Polish 
third  party  motor 
insurer  

(domicile 
insurer)  or 
(habitual 
the 
of 

England 
of  the 
Italy 
residence 
victim) 
Claimant  chose  to 
bring  the  claim  in 
Italy.  
France  (domicile  of 
the 
and 
insurer 
habitual residence of 
the victim) 
Claimant  chose  to 
bring  the  claim  in 
France.  

Spain  (domicile  of 
or 
the 
insurer) 
(habitual 
England 
resident 
the 
of 
victim) 
Claimant  chose  to 
bring  the  claim  in 
England.  
Poland  (domicile  of 
or 
insurer) 
the 
(habitual 
England 
the 
of 
residence 

Applicable 
(including 
limitation) 

Law 
rules  of 

English Law 
 (Rome II Art 4(1)) 

Spanish Law 
(Hague Convention 
Art 4(b)) 

Spanish Law 
(Rome II Art 4(1)) 

Polish Law  
(Rome II Article 
4(1)) 

92 Folino v. Link Motor Insurance Ltd and others Lamezia Terme Court, 29.10.2009 No. 1024 
93 Societe AXA France IARD, Re Unreported April 30, 2014 (Cass (F)) 
94 See the PEOPIL contribution to the Commission 2012 public consultation on limitation periods at 
http://ec.europa.eu/justice/newsroom/civil/opinion/121031_en.htm. 

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insured 
Poland 95 

car 

in 

victim) 
Claimant  chose  to 
bring  the  claim  in 
England.  

Rules  of  limitation  are  complex  and  navigation  of  them,  even  at  the  domestic  level 
requires  in-depth  knowledge.  However,  limitation  laws  have  a  considerable  impact  not 
only on the injured parties' right to access to justice, but also on their substantive rights: 
there  cannot  be  an  effective  right  without  proper  and  adequate  protection  of  it.  The 
application  of  a  limitation  period  may  affect  the  substantive  rights  that  a  claim  for 
compensation aims to protect.  

In  a  cross  border  scenario  it  may  not  be  certain  from  the  outset  which  law  is  the 
applicable law so as to determine which law of limitation will apply. Alternatively, and 
more  likely,  the  applicable  law  may  be  known,  but  it  may  be  a  law  which  is  foreign  to 
both the victim and the court. In both cases it will be more difficult to organise the claim 
because  it  relates  to  events  which  occurred  in  another  country.  It  clear  that  in  cross 
border cases the complexity faced by the parties and the court is significantly heightened. 

Ostensibly then, there is a basis for the consideration of the harmonisation of the rules of 
limitation  relating  to  cross  border  traffic  accidents  in  the  EU,  on  the  grounds  that  the 
current  complexity  has  a  limiting  effect  on  the  realisation  of  the  right  to  claim 
compensation  given  to  victims  of  traffic  accidents  by  the  MID.  The  situation  would 
benefit  from  simplification,  in  order  to  assist  the  parties  to  a  claim  arising  from  an 
incident.  

4 Harmonisation of Limitation Periods  

In the public consultation held by the Commission in 2012,96 respondents were asked to 
comment  on four possible  options for  remedying the  perceived difficulties arising from 
divergent limitation periods faced by visiting victims of RTAs. The options were 
Option 1: Improving information to 'accident-abroad victims' in concrete cases - optional 
Option  2:  Improving  information  to  'accident-abroad  victims'  in  concrete  cases  – 
mandatory 
Option 3: Improving general information on limitation periods 
Option 4: New rules harmonising limitation periods for cross border traffic accidents 

These options, along with another focusing on a choice of law solution, are considered in 
this section. Arguments put forward during the 2012 Consultation in support  of and in 
opposition to them are also taken into account.  

The  objective  of  harmonisation  of  limitations  periods  would  be  to  support  the  free 
movement of persons, by furthering the scheme  of the MID in securing access to justice 
for victims of cross border road accidents, in a way comparable to that in purely domestic 
cases.  The  current  complexity  created  by  the  application  of  foreign  limitation  periods 

95 Ibid.  
96 See n17 above.  

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impedes rather than supports this aim. This objective underpins the discussion on which 
would  be  the  most  suitable  way  to  amend  the  current  situation,  whether  that  method 
meets the requirements of proportionality and subsidiarity and whether there is a correct 
and sufficient legal basis for action under the Treaties of the European Union.   

I  Options for Harmonisation  

1.  Choice of Law Approach 

Firstly, there is an option which could be considered, although it was not put forward for 
consideration in the Commission consultations. A choice of law approach could be taken 
whereby the law of the visiting victim's MS of habitual residence would apply to issues of 
limitation for direct actions against insurers. This could be enacted through a revision of 
the Rome II Regulation. A more comprehensive reform in this regard has previously been 
suggested by Dr Papettas, which would see the victim's ‘home' law govern a direct claim 
in its entirety.97 

An argument made by some respondents to the consultation is that harmonisation would 
be  an  unnecessary  and  unwarranted  interference  with  national  rules  and  national  legal 
systems. In particular it is said that harmonisation would remove rules from their wider 
national context and would therefore conflict with the coherence and rational structure of 
each  national  system,  risking  further  confusion  and  complexity.98  It  was  also  said  that 
homogenised  rules  would  lead  to  unforeseen  consequences  and  potential  injustice  and 
may be ill suited to the general law in some jurisdictions.99 These arguments raise issues 
in  relation  to  proportionality.  Under  Art  5(4)  Treaty  on  European  Union  (TEU)  the 
content  and  form  of  Union  action  shall  not  exceed  what  is  necessary  to  achieve  the 
objectives sought.  

The choice of law approach would involve a minimum of interference with national legal 
systems. It would revise the choice of law rules of Rome II, which are directly effective in 
all  Member  states  (except  Denmark),  but  would  leave  national  rules  of  limitation 
unaltered.  This  option  would  support  the  aim  of  the  MID  in  allowing  claimants  to 
proceed with claims under familiar procedures and would entail an application of laws 
with which the court and the claimant's lawyers were familiar. Where the claim is being 
dealt  with  by  a  claims  representative  or  a  compensation  body,  the  rules  would  also  be 
familiar  to  the  defendant.  Rules  would  not  be  familiar  to  defendants  who  are  insurers, 
but insurers have the resources available to obtain the necessary advice require to defend 
claims  and  are  not  considered  to  be  the  party  in  need  of  protection  under  the  MID. 
Arguably,  this  approach  would  satisfy  the  principle  of  proportionality.  It  would  not 
affect substantive law provisions at all and would involve a fairly minor amendment to 
an existing EU legislative instrument.  

97 J. Papettas, ‘Direct Actions against Insurers of Intra Community Cross Border Traffic Accidents: 
Rome II and the Motor Insurance Directives’ (2012) 8 Journal of Private International Law 297.  
98 
http://ec.europa.eu/justice/newsroom/civil/opinion/121031_en.htm. 
99 See the FOIL response, ibid.  

response 

Greece 

Bank 

See 

the 

of 

at 

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European Added Value Assessment 

This  option  is  not  free  from  difficulty,  however.  Applying  the  rules  of  limitation  of  the 
victim's country  of residence would affect the  scheme  laid down  in  Rome  II by carving 
out an exception for limitation rules in cross border road accident claims brought directly 
against  insurers  or  compensation  bodies.  This  would  rupture  the  current  coherence  of 
Rome  II  making  it  more  complex  in  its  application.  It  would  also  mean  that  rules  of 
limitation  are  potentially  divorced  from  rules  of  liability,  which  could  give  rise  to  a 
particular detriment or a particular advantage to the claimant. For example, the claimant 
may  have  to  adhere  to  a  short  limitation  period,  but  may  also  have  to  prove  fault, 
whereas in a domestic situation the limitation would be short because liability is strict.  

An  obvious  solution  to  these  issues  would  be  to  deal  with  traffic  accidents  as  a  special 
category  of  non-contractual  obligation  under  Rome  II,  where  the  victim's  home  law 
governs the  entire claim. This is a more far  reaching  revision to make, which would do 
away  with  fragmentation  at  the  substantive  law  level,  but  which  would  also  require 
considerable  political  support  and  specific  discussion  going  beyond  the  remit  of  this 
report.100  

2.  Provision of Information to Victims 

The first two options listed for consideration in the Commission 2012 public consultation 
concern the provision of information to victims of cross border accidents about the rules 
of limitation in force in each Member State, on either a voluntary (option 1) or mandatory 
(option 2) basis. These options involve the provision of information to individual victims 
and are not aimed at the convergence of national rules.  

The effectiveness and desirability of these options has been roundly criticised by all sides. 
Respondents representing the insurance industry did not think that insurers should bear 
the responsibility of informing accident victims of the applicable limitation rules, because 
of  the  complexities  of  those  rules,  which  require  in-depth  local  knowledge.101  Claimant 
lawyers  give  practical  examples  showing  the  need  for  legal  practitioners  to  seek  expert 
opinions  on  the  operation  of  foreign  rules  before  they  are  able  to  properly  advise  their 
clients and make progress with individual claims. 

The  analysis  conducted  above  in  Section  2  demonstrates  the  complexity  of  national 
limitation  rules  and  supports  the  objections  raised  by  respondents  to  the  consultation. 
Each case will require expert knowledge of the applicable rules to ensure that the claim 
does not fall foul of them. Indeed the complexity of the rules was also acknowledged in 
the Commission 2009 report which states that: 

“… many differences exist between the different limitation periods systems of the Member States. 
Again the differences are not  straight-forward and it is  not clear which Member State offers the 
longest  limitation  period.  Exceptions  and  specific  suspension  or  interruption  rules  blur  the 
apparent simplicity of the solution.”102 

100 For in-depth discussion of this issue, see Papettas n74 above.  
101 See the responses from the ABI and Insurance Europe.  
102 n15 above at p45.  

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Limitation Periods for Traffic Accidents  

It is submitted that the provision of information on MS limitation periods by insurers, as 
envisaged  by  options  1  and  2  of  the  Commission  2012  consultation,  would  not  be  a 
suitable  option  for  improving  the  position  of  cross  border  RTA  victims.  Claimants 
currently require expert advice tailored to their specific circumstances and it would not 
be sufficient for insurers to provide basic information about rules of limitation. It would 
be  equally  inappropriate  to  expect  insurers  to  provide  detailed  legal  advice  to  victims 
making claims against them.  

3.  Soft Convergence 

The  third  option  given  by  the  Commission  can  be  seen  as  relating  to  a  process  of  what 
has  been  referred  to  as  ‘soft  convergence'.  A  ‘soft  convergence'  approach  facilitates  the 
exchange of information between Member States and then employs soft law options such 
as  recommendations,  opinions  or  optional  instruments,  as  a  means  of  encouraging 
spontaneous  convergence  by  Member  States.  Option  3,  according  to  the  Commission, 
would  see  Member  States  making  general  information  available  about  their  rules  of 
limitation. This could be done  through a virtual platform such as the  e-Justice  portal.103 
The option itself does not hint at convergence, but the sharing of information in this way 
is  what  academics  see  as  the  first  step  in  a  spontaneous  convergence  process.104  Once 
information  has  been  shared  the  EU  institutions  would  be  in  a  position  to  formulate  a 
recommendation  or  optional  instrument  aimed  at  assisting  Member  States  in  making 
choices which would result in the eventual harmonisation of rules.  

Taking  a  ‘bottom  up'  approach  and  using  flexible  mechanisms  to  build  a  harmonised 
system  in  which  Member  States  have  played  an  active  role105  is  said  to  avoid  the 
difficulties  which  can  be  associated  with  a  centralised  regulatory  approach.  It  has  been 
argued  that  formal  harmonisation  does  not  always  achieve  the  desired  result  because 
national  legislatures  and  courts  resent  the  enacted  rules  and  so  seek  to  modify  them  or 
avoid  them  through  the  implementation  or  interpretation  process.106  This  method  of 
convergence would have the advantage of not interfering with national legal systems, but 
would rather allow a natural evolution of national systems towards approximation.  

However,  it  is  difficult  to  envisage  such  a  process  being  successful  in  relation  to 
limitation periods. Soft law options are not legally binding and it is anticipated that they 
would not have the desired effect. As Zekoll points out, national procedural systems are 
subjected to political, constitutional and ideological constraints. Where  substantive laws 
manifest  policy  choices,  so  too  the  procedural  rules  which  service  them,  will  be  a 
manifestation of the same choices, making them ‘resistant to change'.107 Rules of limitation 
are manifestations of policy choices. They define the balance between effective access to 
the  courts  by  a  claimant  and  legal  certainty  for  the  defendant.  They  are  also  linked  in 

103 See https://e-justice.europa.eu.  
104 n28 above.  
105  Tulibacka  ‘Europeanization  of  Civil  Procedures:  In  Search  of  a  Coherent  Approach’  (2009) 
CMLR  1527  at  1547.    Also  see  Vernadaki  ‘Civil  procedure  Harmonization  in  the  EU:  Unravelling 
the Policy Considerations’ (2013) JCER 297, at 308.  
106 Ibid.  
107  Zekoll  ‘comparative  civil  procedure’  Reimann  and  Zimmermann  (eds)  Oxford  Handbook  of 
Coparative Law (OUP 2006) 1328 at 1352.  

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some instances to schemes of liability so that where liability is strict, so that it is easy for a 
claim to be made, the basic time limit which applies can be short, as in Spain where the 
limit  is  one  year.108  Member  States  are  likely  to  resist  change  on  the  grounds  of  policy. 
The position is summed up by Vernadaki: 
“… a soft law instrument  … could hardly address the exigencies of effective enforcement  of EU 
rights  and  obligations.  The  main  reason  is  that  it  completely  lacks  binding  force,  …  Member 
States' national legislatures have little incentive to undertake reforms in national civil procedural 
rules in accordance with the mandates incorporated in the soft-law instrument.” 109 

 The  aim  of  harmonisation  of  rules  of  limitation  of  improving  access  to  justice  for  cross 
border  victims  is  unlikely  to  be  achieved  using  this  method.  Furthermore,  the  point 
demonstrates the need for action by the EU, where the proposed action would “be better 
achieved  at  Union  level”110  indicating  that  action  to  harmonise  would  also  satisfy  the 
principle  of  subsidiarity.  It  is  submitted  that  the  current  divergence  is  such  that  only 
action  at  the  Union  level  will  be  sufficient  to  address  it.  Action  by  the  Member  States 
could  not  achieve  the  level  of  coordination  required  to  generate  the  certainty  which 
would  allow  victims  to  bring  claims  expeditiously  and  at  a  cost  resembling  that  of  a 
domestic claim.   

4.  Comprehensive Harmonisation 

The  fourth  option  expressly  envisages  a  more  traditional  approach  to  harmonisation  of 
rules.  Rules  are  harmonised  or,  in  some  circumstances,  unified,  using  Union  legislation 
such  as  Directives  or  Regulations.  Comprehensive  harmonisation  would  involve 
unification  of  Member  State  rules  on  limitation  and  appears  to  be  the  target  for  a  great 
deal of criticism in the consultation responses, on the basis that it would have the greatest 
impact in terms of interference with national legal systems.  

There  are  some  advantages  to  comprehensive  harmonisation.  It  would  do  away  with 
divergence  altogether,  making  for  a  clear  system  of  rules  which  could  achieve  greater 
uniformity of application in the Member States. This would give rise to significantly less 
need for local expert advice and would reduce the instances where limitation issues were 
raised,  thereby  reducing  delay,  legal  costs  and  uncertainty.  It  would  also  allow  for  a 
policy  to  be  determined  whereby  an  appropriate  balance  could  be  decisively  struck 
between  the  rights  of  the  victim  to  effective  access  to  justice  and  the  rights  of  the 
defendant to certainty and finality.  

On  the  other  hand  it  would  be  the  most  intrusive  option  in  terms  of  interference  with 
national legal systems and if the rules were not correctly balanced, the impact would be 
greater  and  more  difficult  to  rectify.  In  addition,  there  would  be  a  greater  cost  of 
transposition  for  Member  States  owing  to  the  nature  of  the  changes,  which  would  be 
more  far  reaching  in  many  instances.  It  should  also  be  noted  that  there  would  be  a 
period,  following  the  implementation  of  comprehensive  harmonisation,  whereby  the 
application  of  the  new  rules,  which  would  require  autonomous  definition  and 
interpretation,  may  be  uncertain.  This  is  likely  to  lead  to  a  short  term  increase  in 

108 See above Table 1.  
109 Vernadaki n82 above at 308.  
110 Article 5(3) TEU.  

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transaction  costs  for  the  parties  to  disputes.  It  is  to  be  doubted  whether  this  approach 
could  meet  the  principle  of  proportionality,  bearing  in  mind  that  minimum  standards 
harmonisation is also an option.  

5.  Minimum Standards Harmonisation 

A less controversial option would be to utilise a minimum standards approach. Here an 
instrument (usually a Directive) sets down minimum standards which must be complied 
with  whilst  leaving  the  method  of  compliance  to  each  Member  State  and,  importantly, 
allowing Member  States the  option of applying any rules which are more favourable  to 
the desired outcome. This method of harmonisation is less interventionist than complete 
or hard harmonisation. It could secure a minimum level of protection in order to address 
some of the issues faced by victims of cross border road accidents, such as the increased 
time it takes to organise a claim, but also means that some Member States' current rules 
may not be affected at all. This would be the case, for example, with a rule which aimed 
to provide a minimum standard of 4 years as the overall time limit before a claim became 
time barred. Such a rule would leave intact any existing Member State rule which is four 
years  or  more  in  this  respect,  thus  preserving  a  degree  of  national  autonomy  and 
lessening the sense in which EU centralised regulation interferes with the  national legal 
framework.  
However, the main difficulty with this approach would be that it would not deal with the 
complexity  of  divergent  national  rules  in  full.  There  is  some  indication  that  the 
uncertainty  created  by  the  application  of  foreign  limitation  rules  can  cause  costs  to  be 
increased through an increase in the numbers of hours the  legal adviser  spends dealing 
with the claim, an increase in the court costs which need to be paid and the need to seek 
local  expert  advice.  This  situation,  arguably,  runs  counter  to  the  rationale  behind  the 
provisions  of  the  MID  which  ensure  a  right  of  direct  action  in  the  Member  State  of 
residence  of  the  victim,  where  it  was  felt  important  to  simplify  the  claims  process  for 
victims in support of the free movement of persons in the EU.  

With  harmonisation  of  minimum  standards  some  of  the  costs  incurred  due  to  the  need 
for  expert  local  knowledge  will  remain,  because  there  will  not  be  a  single,  uniform 
system for determining limitation. However, many of the issues visiting victims currently 
face could be addressed by minimum standards, which could be an important first step 
for  the  approximation  of  Member  State  rules  and  might  facilitate  a  more  natural  and 
spontaneous  convergence  of  rules  in  time,  as  part  of  a  continuing  and  gradual  process, 
whilst supporting the effective realisation of the rights granted by EU law, particularly as 
regards access to justice.  
There is also the possibility for this method of harmonisation to create less fragmentation 
of national rules. Where national rules already meet the  minimum standards, there will 
be no fragmentation of the rules as between cross border and domestic claims or between 
claims against the insurer or claims against the  wrongdoer. This is not to say that those 
countries  where  amendment  is  necessary  for  the  protection  of  minimum  standards 
would not experience some fragmentation in this regard, but a process of harmonisation 
is designed to bring about  some  change  and this cannot be a perfect process bearing in 
mind the complexity of the task.  

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II  Recommended Option  

It is submitted that, on balance, it would be better to approach the harmonisation of rules 
of  limitation  using  minimum  standards  harmonisation.  In  this  way  the  requirement  of 
proportionality  is  more  clearly  met  since  the  aim  of  the  harmonised  rules  to  protect 
access  to  justice  and  lower  claimant's  transaction  costs  to  a  level  commensurate  with 
those in domestic cases is met in the least obtrusive way for national systems.  

However, it is important to be clear about which claims any harmonised rules ought to be 
applied to. There are a number of options here. Rules could be implemented covering all 
claims  arising  from  a  road  accident  whether  cross  border  or  not.  Alternatively,  rules 
might apply to all claims of a cross border nature, or only to those claims made available 
under the MID i.e. claims against insurers and compensation bodies either domestically 
and cross border, or cross border only.  

It is submitted that the option which fits best with the principle of proportionality is that 
where  rules  are  harmonised  only  for  claims  made  available  by  the  MID  which  are  of  a 
cross border nature. The availability of these claims is already standardised across the EU 
by the MID. This option supports the aims and objectives of the MID in trying to ensure 
that  visiting  victims  have  an  effective  means  of  accessing  justice  and  compensation 
following a cross border accident.  

This approach may cause some fragmentation, with harmonised rules applying to cross 
border  claims  against  insurers  or  compensation  bodies,  but  national  rules  applying  to 
other  types  of  claims.111  However,  as  will  be  shown  below,  unless  the  harmonising 
measure can be said to have as its object the establishment and functioning of the internal 
market,  then  harmonising  measures  will  be  restricted  by  the  appropriate  legal  base  to 
situations having cross border implications.112 Moreover, there does not appear to be any 
concern  in  relation  to  the  operation  of  national  rules  of  limitation  in  the  context  of 
domestic  accidents  at  present.  Nevertheless,  as  discussed  above,  any  potential 
fragmentation would be minimised owing to the use of minimum standards, in the main, 
and would be offset by the advantages of certainty and more effective access to justice.  

With regard to claims arising out of cross border accidents which are brought against the 
person said to be liable (as opposed to that party's insurer), such claims must be brought 
in either the  country  of residence of the  defendant or in the  country  of the  place where 
the accident occurred, in accordance with the Brussels I (recast) Regulation. This situation 
will entail the application of foreign substantive and procedural law and will require the 
appointment  of  a  local  legal  expert  to  advise  on  a  whole  range  of  legal  matters.  In  this 
situation  it  is  not  obvious  why  harmonised  rules  of  limitation  would  be  required. 

111  See  generally  G.  Wagner  ‘Harmonisation  of  Civil  Procedure  –  Policy  Perspectives’  in  X.E. 
Kramer and C.H. van Rhee (eds) Civil Litigation in a Globalising World (Springer 2012). See also See 
‘COMMUNICATION  FROM  THE  COMMISSION  TO  THE  COUNCIL  AND  THE  EUROPEAN 
PARLIAMENT Area of Freedom, Security and Justice: Assessment of the Tampere programme and 
future orientations’ COM(2004) 4002 final, p11. 
112 See below at 4(d).  

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Although  this will create  a further degree of fragmentation, this approach  would better 
accord with the principle of proportionality in doing only what is required to achieve the 
desired aims.  

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III  Specific Issues Relating to Proportionality  

1.  The Numbers of Relevant Accidents  

It was clearly the view of some of those who responded to the public consultations113 that 
the number of accident victims who might be adversely affected by a lack of harmonised 
limitation rules was too low to warrant any form  of harmonising action. This is an issue 
with potential implications for the proportionality of any harmonising action.   

It should be made clear first of all that it is the opinion of the authors that the number of 
relevant accidents should not be of primary concern. In keeping with the ideal of creating 
a single area of freedom, security and justice within the EU,114 it should not matter how 
many people are unable to effectively access justice. Where EU law grants rights, with a 
view  to  facilitating  movement  across  borders  in  support  of  economic  and  social 
integration, such rights must be fully supported by procedures which allow for effective 
enforcement of them. This point was also made in the Commission 2009 report, where it 
was stated that: 
“Even if the numbers concerned are very limited this does not mean that the amounts involved are 
themselves limited. Further, one may say that the problem remains so long as even one EU citizen 
suffers the injustice of being under-compensated.”115 

In  the  context  of  other  forms  of  transport,  where  harmonised  measures  relating  to 
limitation have been adopted at the EU level,116 it does not appear that there was ever a 
debate  surrounding  the  number  of  people  who  would  be  affected.  No  cost  benefit 
analysis was demanded, even though accidents involving trains or aeroplanes are far less 
frequent  than  those  involving  road  vehicles.117  Providing  effective  means  of  redress 
following an RTA is of essential importance, regardless of how many people are affected 
each year.  

Nevertheless,  this  report  will  address  the  arguments  put  forward  which  suggest  that 
action to harmonise rules of limitation would not be proportionate because the numbers 
of people affected are very small. It is submitted that the numbers are not as low as has 
been suggested.  

Firstly, it must be reiterated that there are no entirely accurate statistics on the numbers 
of  traffic  accidents  occurring  which  involve  foreign  or  visiting  victims.118  Figures  put 
forward  on  the  total  number  of  accidents  can  be  misleading  where  they  relate  only  to 
accidents  involving  death  or  serious  injury.  In  the  Commission  2009  report  a  figure  of 
3,540,000 is used to represent annual fatalities and serious injuries resulting from RTAs in 

113 See n17 and 18 above.  
114 Art 3(2) TEU.  
115 n15 above at 54.  
116 See Table 6 below.   
117 See http://ec.europa.eu/eurostat/statistics-explained/index.php/Transport_accident_statistics.  
118  See  Renda  A  and  Schrefler  L,  ‘Full  Compensation  Of  Victims  Of  Cross-Border  Road  Traffic 
Accidents  In  The  EU:  The Economic  Impact  Of  Selected  Options’  (2007)  a study  prepared  for  the 
European Parliament PE. 378.30; Commission 2009 report n15 above.  

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the  EU.119  However,  Eurostat  statistics  suggest  that  in  2007  9.6%  of  EU  citizens  aged 
between 14-64 reported a RTA. 120 The population of the EU 28 in 2007 was 498,300,775,121 
65%  of  whom  were  aged  14-64.122  This  means  that  there  were  31,093,968  reports  of 
accidents made by those aged 14-64 in that year. This of course is not a definitive guide to 
the  number  of  accidents.  Many  accidents  will  be  reported  by  more  than  one  person. 
Many  accidents  (particularly  minor  collisions)  will  not  be  reported  at  all.  Accidents 
reported by those over the age of 64 or under the age of 14 are not included. However, it 
is  likely  to  be  a  more  representative  figure  than  that  given  in  the  Commission  report, 
since that figure appears to relate only to fatalities and serious injuries, thereby excluding 
accidents resulting in minor injuries or property damage.  

This figure seems  high and is much  higher than any figure postulated  in  the  context of 
the  debate  around cross border accidents before. However, there  is evidence to support 
that  this  level  of  accidents  might  be  occurring  throughout  the  EU.  The  UK  Department 
for  Transport,  in  a  report  in  2012,  states  that  there  were  145,571  reported  accidents 
involving  deaths,  serious  injury  and  slight  injury  in  the  UK.  However,  the  report  also 
estimates  that  360,000  slightly  and  seriously  injured  casualties  go  unreported  each  year 
along with 2.2 million damage only accidents. This pushes the number of accidents in the 
UK  from  the  reported  145,000  to  an  estimated  2.5  million  overall.  In  this  context  the 
figure for the EU of 31 million appears far more plausible.  

The next point to consider is how many of those accidents will involve a visiting victim. 
The Commission 2009 report suggests that the figure will be far less than one percent.123 
This is calculated on the basis that 7.5% of accidents involve foreign parties, but that this 
should be reduced by excluding many accidents on the basis of a range of factors. Some 
of the exclusions can be questioned however.  

For example, excluding accidents involving cross border workers and commuters on the 
basis that these parties are covered by labour laws or special insurance arrangements, or 
may in some instances have contractual claims against their employers is troubling. It is 
true  that  all  EU  Member  States  have  in  place  schemes  of  workers  compensation.  The 
schemes  vary  in  scope  and  mode  of  operation  as  between  the  different  Member  States, 
but all seek to ensure the compensation of workers who are injured due to work related 
activities. However, there are some important features of worker compensation schemes 

119119  See  also  the  European  Transport  Safety  Council  9th  Road  Safety  Performance  Index  Report 
June 2015.   
120 See http://appsso.eurostat.ec.europa.eu/nui/show.do accessed on 20 October 2015.  
121 
Seehttp://ec.europa.eu/eurostat/tgm/table.do?tab=table&init=1&language=en&pcode=tps00001
&plugin=1 accessed on 20 October 2015.  
See 
122 
http://ec.europa.eu/eurostat/statisticsexplained/index.php/File:Population_age_structure_by_m
ajor_ 
age_groups,_2004_and_2014_(%25_of_the_total_population)_YB15.png  accessed  on  20  October 
2015.  
123 Commission 2009 report n 14 above at p52.   

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European Added Value Assessment 

which  mean  that  it  is  not  appropriate  to  exclude  cross  border  workers  and  commuters 
from consideration in relation to applicable law and limitation periods.  

i.  Not  all  schemes  cover  the  journey  to  and  from  work,  so  that  protection  is  not 

offered to commuters uniformly.124  

ii.  No  scheme  compensates  fully,  when  compared  to  a  civil  action.  None  of  the 
schemes in force in Member States compensates for property damage or for pain 
and  suffering.  Schemes  only  partially  replace  lost  earnings  as  compensation  is 
not  directly  linked  to  actual  rates  of  pay  and  a  cap  on  the  maximum  amount 
payable is in operation under some schemes.125  

iii.  Where  schemes allow for compensation to be  topped  up by recourse  to a claim 
against the employer, the claimant must still establish the fault of the employer, 
or at least show that the injury was attributable to the employer.126  

Where  an  accident  occurs  and  the  victim  is  carrying  out  activities  relating  to 
employment,  but the  accident is clearly the  fault  of the  other road user, the  victim  may 
have  the  option  to  claim  under  the  relevant  workers  compensation  scheme.  This  is 
unlikely  to  provide  full  compensation  and  the  victim  may  well  wish  to  pursue  the 
wrongful driver's insurer. The victim is unlikely to be able to attribute the accident to the 
employer, ruling out a claim for employer's liability (where this is possible at all) making 
a  motor  insurer  claim  all  the  more  important  in  terms  of  securing  adequate 
compensation. The right to make a civil claim against the wrongful driver or his insurer is 
not extinguished by the existence of a workers compensation scheme and it is not right to 
exclude consideration of these types of victims when assessing matters of applicable law 
and limitation.  

A more representative figure for the number of accidents involving visiting victims may 
be that provided for in the European Parliament study of 2007. Here Renda and Schrefler 
report  that  in  2004  statistics  suggest  that  2%  of  accidents  in  Germany  involved  visiting 
victims  (as  opposed  to  a  foreign  party  more  generally).127  This  may  provide  a  more 
reliable  basis  to  work  from  since  it  is  based  on  data  relating  specifically  to  numbers  of 
visiting victims. This figure cannot be reliably scaled up to cover the entire territory of the 
EU  for  2015  since  it  is  acknowledged  that  the  number  of  cross  border  accidents  is 
increasing and, in any event, one  figure cannot represent the  situation in every  country 
where  there  are  differences  in  tourism  or  cross  border  commuting,  for  example. 
However,  in  the  absence  of  any  more  reliable  data,  the  figure  of  2%  is  preferred  as  an 
indication of the likely numbers of accidents where victims are likely be resident in an EU 
Member State which is different to that where the accident occurred.  

If  we  use  the  figure  of  31  million  as  a  rough  indication  of  the  number  of  accidents 
occurring annually, this would put the number involving visiting victims (2%) at 775,000 

124) Commuting is covered in Austria for example but not in England and Wales. See Oliphant and 
Wagner  (eds)  Employers’  Liability  and  Workers  Compensation  (De  Gruyter  2012),  pages  70  and  150 
respectively.  
125Ibid, p 564 – 567.  
126 Ibid.  
127 EP report n95 above at p15.  

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accidents  per  year.  This  certainly  suggests  that  the  numbers  of  accidents  we  are 
concerned with for the purposes of this report are not insignificant.  

2.  How Often Are Limitation Issues Raised?  

A number of respondents to the 2012 public consultation raised the point that in the vast 
majority of claims limitation does not expire before a claim can be made, so that it is very 
rare for a claim to be defeated on the grounds of limitation.128 Although some responses 
cited  cases  or  instances  where  it  was  known  that  a  claim  had  been  defeated  on  this 
issue,129  there  is  certainly  no  empirical  evidence  to  suggest  that  it  is  a  widespread 
problem.  

However, when it is stated that it is rare for a claim to be defeated by issues of limitation 
and, therefore, action to harmonise is disproportionate, the costs associated with disputes 
about  overall  limitation  rules,  which  can  be  attributed  to  their  cross  border  nature,  are 
not  being  taken  into  account.  For  example,  the  Association  of  British  Insurers,  in  its 
response to the consultation, suggested that since 90% of claims are settled out of court, 
on  an  estimate  of  2%  of  all  victims  being  ‘visiting  victims'130  then  only  0.4%  of  victims 
would  face  limitation  issues.  The  examples  given  by  PEOPIL  demonstrate  very  clearly 
that it is not only claims which proceed to court trial which give rise to issues relating to 
limitation and the costs associated with them. 

Having  said  that,  limitation  will  not  be  raised  as  an  issue  in  all  cases.  The  consultation 
with  claimant  lawyers,  carried  out  for  the  purposes  of  this  report,  sought  information 
about the numbers of cross border traffic accident cases which raised issues of limitation 
and  how  many  additional  hours  the  legal  representative  spent  on  the  case  as  result  of 
limitation being at issue.  

The  consultation  revealed  that  on  average  limitation  issues  were  raised  in  32%  of  cross 
border cases. 32%  of the total number  of accidents concerning  visiting victims (775,000) 
amounts  to  248,000  accidents  per  year,  involving  injury  or  property  damage  to  visiting 
victims.  

the 

See 

128 
http://ec.europa.eu/justice/newsroom/civil/opinion/121031_en.htm.  
129 See for example the responses by PEOPIL, FIA, AMICE, ACA and FEVR ibid.  
130 Based on the figure given by Renda and Schefler. See above n95.   

response 

ABI 

for 

example 

at 

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Table 5 - How Often Are Limitation Issues Raised?  

In how many cross border RTA cases does a lawyer 
faces issues concerning limitation periods?

32%

RTA cross-border cases

cases involving limitation
periods issues

68%

This figure represents a very small proportion of the total number of accidents each year. 
However, this in itself is not a reason to leave the situation unchanged and to therefore 
subject  future  claimants  to  increased  financial  and  emotional  costs.  In  any  event,  it  is 
submitted that it is unrealistic to say that an issue affecting a quarter of a million people 
does  not  warrant  attention.  It  is  notable  that  the  introduction  of  harmonised  rules  of 
limitation in relation to other areas of law, such as product liability and transport by air, 
railway and sea, has been undertaken despite the numbers of relevant incidents that the 
measure is designed to address being far less, in each case, than 250,00 per year.131  

IV  Legal Basis for Action  

Of  all  the  arguments  put  forward  in  opposition  to  the  idea  of  harmonising  limitation 
periods, it is interesting that the lack of a correct legal basis for action was not one. There 
are two main Treaty measures which might be used as a basis for a legislative initiative, 
each giving rise to slightly different issues.  

The  desire  to  establish  an  area  of  freedom,  security  and  justice  in  the  EU132  and  the 
removal  of  the  policy  area  of  judicial  cooperation  in  civil  and  commercial  matters  from 
the  third  to  the  first  pillar  under  the  Treaty  of  Amsterdam,  signalled  quite  clearly  the 
willingness  of the  EU to ensure effective enforcement of EU substantive  rights,  through 
harmonisation  of  the  rules  necessary  for  that  effective  enforcement.  The  amendment  of 
Art 65 EC, to its current form in Art 81 TFEU, includes the insertion of Art 81(2)(e). This 
specific section grants the power to adopt measures which are necessary for ensuring the 

131 
explained/index.php/Transport_accident_statistics.  
132 Now expressed in Art 3(2) TEU 

example 

See 

for 

http://ec.europa.eu/eurostat/statistics-

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Limitation Periods for Traffic Accidents  

proper  functioning  of  the  internal  market,  in  matters  with  cross  border  implications, 
which are required to ensure effective access to justice.  
Article 81 states: 

(1)  The  Union  shall  develop  judicial  cooperation  in  civil  matters  having  cross 
border implications, based on the principle of mutual recognition of judgments and of 
decisions in extrajudicial cases. Such cooperation may include the adoption of measures 
for the approximation of the laws and regulations of the Member States. 

(2)  For  the  purposes  of  paragraph  1,  the  European  Parliament  and  the  Council,  acting  in 
accordance  with  the  ordinary  legislative  procedure,  shall  adopt  measures,  particularly 
when  necessary  for  the  proper  functioning  of  the  internal  market,  aimed  at 
ensuring: … 

(e) effective access to justice;133 

The  rules  provided  by  the  Motor  Insurance  Directives  (MIDs)  instituted  a  structured 
system aimed at the promotion of the “free movement of persons and vehicles” and the 
protection  of  victims'  rights,  by  granting  them  the  right  to  a  direct  action  against  the 
insurance and other bodies. The rights granted to victims of accidents by the MID clearly 
support the internal market by facilitating the free movement of people and vehicles. This 
can  be  viewed  as  essential  to  cross  border  trade  and  commerce.  Any  measure  enabling 
effective  enforcement  of  the  rights  granted  to  accident  victims  can  consequently  be 
viewed as supporting the proper functioning of the internal market. 

Moreover, the newer conceptualisation of a Union based on a broader understanding of 
an area of freedom, security and justice, which supports fundamental rights of access to 
justice  as  well  as  the  assertion  by  citizens  of  the  rights  granted  to  them  by  EU  law,134 
would encompass the  issues faced by the  parties to a cross border action in light of the 
complex and uncertain nature of divergent rules on limitation. The addition of ‘effective 
access  to  justice'  as  an  area  of  specific  competence  for  the  EU  can  be  seen  as  taking  for 
granted that such issues are important for the development of the Union and an area of 
freedom, security and justice.135  

It  is  submitted  that  the  issue  under  consideration  here,  namely  the  ability  of  victims  of 
cross border RTAs to assert their rights to compensation, and the effects of the existence 
of  a  multiplicity  of  different  and  complex  rules  of  limitation  on  the  assertion  of  those 
rights,  would  fall  within  the  ambit  of  Art  81(2)(e).  Unfamiliarity  with  foreign  rules  of 
limitation  can  lead  to  the  loss  of  the  right  to  make  an  otherwise  valid  claim,  or  to 
obstacles to accessing justice, in the form of additional costs and delay. 

133 Emphasis added.  
134 See the Communication From The Commission To The European Parliament, The Council, The 
European Economic And Social Committee And The Committee Of The Regions ‘Delivering an area 
of freedom, security and justice for Europe's citizens, Action Plan Implementing the Stockholm Programme’ 
(2010) COM 171 final, p2.  
135 See Storskrubb Civil Procedure and EU Law (OUP 2008), p44-45.  

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It should be noted that this legal basis is not aimed specifically at measures which relate 
to  substantive  legal  measures  only.  It  is  broad  enough  to  encompass  changes  to  rules 
which may be considered to be procedural in nature in some Member States. There is no 
restriction on the types of rules which may be affected by harmonisation inherent in the 
text or meaning of Article 81. Indeed the harmonised rules of limitation contained in the 
Product Liability Directive136 will have had a similar effect in national legal systems to the 
rules  being  proposed  in  this  report.  Although  that  Directive  is  based  on  Article  114 
(discussed below), it provides a demonstration  that the  nature  of the rules affected will 
not  restrict  the  use  of  particular  Articles  of  the  TFEU  as  legal  bases  for  harmonising 
action.  
The alternative legal base for harmonisation action would be Art 114 TFEU. This article 
empowers  the  EU  institutions  to  enact  provisions  which  are  necessary  for  the 
establishment and functioning of the internal market. This provision has provided a legal 
basis  for  a  number  of  sectorial  provisions  which  have  encompassed  rule  of  limitation, 
such as the  Product Liability Directive.137 Under Art 114 the  provision does not need to 
relate to matters having cross border implications. Using this legal base would enable a 
more  expansive  rule  to  be  adopted  which  applied  to  all  traffic  accident  cases,  domestic 
and  cross  border.  This  would  address  the  issue  of  complexity  and  fragmentation.  It 
would  also  allay  any  concerns  there  might  be  about  the  possibility  of  reverse 
discrimination, whereby cross border victims are seen as being treated more favourably 
than domestic victims.  
However,  measures  adopted  under  Art  114  must  have  as  their  object  the  removal  of 
actual or potential barriers to trade, as held in the Tobacco Advertising case.138 The MID 
itself is based on Art 114, being a measure which is important for the establishment of the 
internal market in insurance services, as well one which facilitates the free movement of 
persons and vehicles. 

A  rule  which  is  directly  linked  to  the  EU  right  of  direct  action  against  an  insurer  or 
compensation body, granted to citizens under the MID, as recommended above, might be 
enacted  as  an  amendment  to  the  MID.  The  rule  would  not  apply  in  respect  of  claims 
made  against  tortfeasors,  but  only  those  made  directly  against  insurers,  whether  of  a 
cross border nature or not. This would build on and complement existing provisions, but 
it would also be questionable whether harmonised rules could really be said to concern 
the establishment and functioning of the internal market for the purposes of Art 114. Art 
114(2)  does  not  permit  the  internal  market  legal  base  to  be  used  to  support  the  free 
movement of persons. Although the MID supports the internal market more broadly, it is 
the  authors' view that the  harmonisation  of limitation rules can only be  said to support 
the internal market by facilitating free movement of persons. This effectively rules out the 
use of Art 114 as a basis for action on the matter of limitation periods.  

136 Dir 85/374/EEC on the approximation of the laws, regulations and administrative provisions of 
the Member States concerning liability for defective products. OJ L 210/29. 
137 Ibid.   
138  C-491/01;  ECR  [2002]  I-11453.  See  also,  S.  Weatherill  ‘Why  Object  to  the  Harmonization  of 
Private Law by the EC? (2004) ERPriv L 633, 634 – 640.  

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It is therefore relevant to note that legislative measures taken with a view to preventing 
victims from losing their right to access justice, would be correctly based on Art 81(2)(e) 
and  would  be  consistent  with  the  right  to  an  effective  remedy  and  to  a  fair  trial  as 
granted  by  Article  47  of  the  Charter  of  Fundamental  Rights  of  the  European  Union. 
Harmonised rules would therefore be limited in their application to those situations have 
cross border implications.  

V  Conclusion  

This section of the report has defined the nature of the issues which must be considered 
when  deciding  how  rules  of  limitation  should  be  harmonised.  It  has  undertaken  a 
balancing exercise, considering those arguments put up by way of opposition to the idea 
of  harmonisation,  and  has  balanced  these  against  the  arguments  which  suggest  that 
harmonisation  is  necessary.  The  balance  falls  in  favour  of  harmonisation.  Much  of  the 
opposition to harmonisation, based in large part on the idea that such action would not 
respect  the  fundamental  principles  of  proportionality  and  subsidiarity,  appears  to  be 
falsely  premised  on  the  idea  that  the  numbers  of  cases  which  might  be  affected  by  the 
complexity  and  uncertainty  of  the  current  situation  are  insignificant.  Analysis  of  the 
numbers  would  suggest  otherwise,  and  it  is  anyway  questionable  whether  numbers 
should be taken into account when important rights are at stake. The other false premise 
appears  to  be  that  the  only  action  which  would  be  taken  would  be  comprehensive 
harmonisation, which would disproportionately interfere  with national  systems. But, as 
has  been  demonstrated,  comprehensive  harmonisation  is  not  the  only,  or  the  most 
appropriate  form  of  harmonisation  in  this  instance  and  this  affects  the  weight  of  the 
arguments which are based on this point.  

On  the  other  side,  the  arguments  in  favour  of  beginning  a  harmonisation  process  are 
quite  compelling.  The  need  to  take  action  to  safeguard  effective  access  to  justice  and  to 
fully  support  the  aims  of  the  MID  in  ensuring  that  victims  have  the  means  to  claim 
compensation  following  an  accident  are  clear  from  the  difficulties  the  current  situation 
gives rise to in terms of increased costs, delays and uncertainty, as well as the possibility 
that  the  right  to  claim  might  ultimately  be  lost  owing  to  a  lack  of  understanding  of  the 
operation of foreign rules.  

What remains to be done in this report is to set out a proposal for appropriate minimum 
standards and then to calculate, as accurately as possible the added value of EU action to 
implement such a proposal 

5 Proposed Minimum Content 

In this section, following on from conclusions in the previous section that harmonisation 
would  be  desirable  in  the  field  of  cross  border  traffic  accidents,  existing  harmonising 
measures for limitation rules are examined, along with the general principles which can 
be discerned from the case law of the European Court of Human Rights (ECtHR) and the 
CJEU. This analysis is then used in the formulation of proposals for the harmonisation of 
limitation rules.  

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I  Existing Harmonised Rules  

There  are  a  number  of  sources  of  international  law  that  provide  for  a  harmonised 
approach  to  issues  of  limitation  for  claims  relating  RTAs,  as  well  as  for  claims  by 
passengers  of  other  modes  of  transport.  None  of  these  schemes  follows  the  same 
structure. As demonstrated in the table below there are different time limits in each of the 
instruments,  as  well  as  different  arrangements  for  when  time  begins  to  run  and 
interruption, suspension and extension of the limitation period.   

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Limitation Periods for Traffic Accidents 

Table 6 – Passenger's Rights Regulations  

Existing Harmonised Limitation Rules  

Issues 

European 
Convention on 
Compulsory 
Insurance in Respect 
of Motor 
Vehicles(1959) 

Convention on 
Contracts for 
International Carriage 
of Passengers and 
Luggage by Road 
(1973) 

Passengers by sea 

Passengers by air 

Passengers by rail 

Regulation 329/2009 

Regulation 889/2002 

Regulation 1371/2007 

Athens Convention Model 

Montreal Convention 
Model 

CIV/COTIF 

Model  

distinction  between 
subjective/short 
and  objective/long 
limitation periods  

subjective/short 
time-limit 

objective/long 
time-limit 

provisions  on  “date 
of knowledge” 

no 

yes 

Yes 

no 

yes, but for fatal 
accidents only 

2 years  

3 years (personal injury) 

2 years 

2 years 

3 years 

- 

no 

1 year – other claims 

5 years  

3 years 

- 

for personal injury 
claims only 

Yes 

irrelevant, or law of the 
Court seized or law 
applicable under Rome II? 

5 years (secondary 
victims only) 

national law? 

provisions 
suspension 

on 

yes – suspension 
upon making a 
written claim to the 

yes – suspension upon 
making written claim to 
the carrier 

none, law of the Court 
seized applies subject to 
time limits above 

no suspension, or law of 
the Court seized or law 
applicable under Rome II? 

national law 

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59 

 
 
 
 
 
 
 
 
European Added Value Assessment 

insurer.  

provisions 
interruption  

on 

none  

none  

none, law of the Court 
seized applies subject to 
time-limits above 

no interruption, or law of 
the Court seized or law 
applicable under Rome II? 

by 
extension 
carrier's declaration 

extension 
parties' agreement 

by 

none  

law of the forum court 

Yes 

none  

law of the forum court 

Yes 

no extension, or law of the 
Court seized or law 
applicable under Rome II? 

no extension, or law of the 
Court seized or law 
applicable under Rome II? 

national law 

national law 

national law 

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Limitation Periods for Traffic Accidents  

When  viewed  together,  the  above  instruments  demonstrate  a  considerable  lack  of  coherence  of  EU 
law in relation to the passengers' access to justice and remedies. It is unclear why, despite comparable 
infringements of rights (health, life, family, property) and similar losses, a passenger by air should be 
treated differently from a passenger by sea or by rail or by coach? 

This  is  not  a  desirable  situation.  The  enactment  of  a  new  regime  in  relation  to  cross  border  RTA 
victims  will  add  further  complexity  to  the  situation,  making  future  reforms  aimed  at  producing  a 
coherent approach to issues of limitation more generally all the more difficult. However, it also means 
that  at  present  there  is  no  uniform  model  which  the  legislator  must  follow  when  formulating  new 
rules.  

II  General  Principles  from  ECtHR  and  CJEU:  access  to  justice  and 

victims' protection.  

It is important to consider relevant rulings from the ECtHR and the CJEU on the subject of limitation 
periods. The fundamental freedoms guaranteed by the ECHR and which ‘result from the constitutional 
traditions  common  to  the  Member  States,  shall  constitute  general  principles  of  the  Union'.139  As  such,  the 
rulings  of  the  ECtHR  on  the  interpretation  of  those  rights,  is  an  important  guide  to  the  principles 
which must be reflected in EU law. Furthermore, the previous rulings of the CJEU give an indication 
of the likely approach of the court to interpretation of any measure of Union law.  

1.  ECtHR and National Limitation Laws 

Domestic  limitation  laws  may  be  subject  to  ECtHR  scrutiny,  mainly  under  Article  6(1)  of  the 
European Convention on Human Rights (ECHR), which secures the right to have a claim, relating to 
civil rights and obligations, brought before a court or tribunal. 

In  Stubbings  and  Others  v.  United  Kingdom140  the  applicants  argued  that  the  operation  of  English 
limitation  rules  was  contrary  to  Art  6(1)  ECHR  when  their  claims  relating  to  sexual  abuse  became 
time barred.  

The European Court ruled that limitations to right of access to justice “are permitted by implication since 
the  right  of  access  by  its  very  nature  calls  for  regulation  by  the  State”141  and  that  in  this  respect  “the 
Contracting States enjoy a certain margin of appreciation.”  142 However, it was also stated that in light of 
the particular circumstances of the case it must be satisfied that: 1) “the limitations applied do not restrict 
or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is 
impaired”;  2)  the  limitations  pursue  a  legitimate  aim  which  is  proportionate  to  the  aim  sought  to  be 
achieved.143  

On this basis, the Court found that English rules of limitation satisfied such requirements, as the law 
allowed a period of six years from the claimants' eighteenth birthdays for the bringing of a claim. The 
time  limit  was  not  unduly  short.  Moreover  the  rules  were  proportionate  to  the  aims  sought,  in 
particular that it is difficult to adjudicate on claims which relate to events that have happened a long 
time  ago. The  continuing  possibility  of a criminal action also  meant that the victim's right to access 
justice was not unduly impaired.  

139 Art 6(3) TEU.  
140 Judgment of 24 September 1996, Recueil 1996-IV.  
141 Ibid p1502-1503 
142 Ibid.  
143 Ibid.  

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Had English law been like many other continental laws where serious criminal offences are subject to 
time-limits and/or minors do not benefit of a  dies a quo starting from their eighteenth birthday, it is 
arguable that under the same logic, the judgment would have resulted in the finding of a violation. 

This last scenario is not merely hypothetical, it is confirmed by Stagno v. Belgium. 144 Here the ECtHR 
held  that  there  had  been  a  violation  of  Article  6(1)  where  an  action  brought  by  the  applicants, 
complaining that the  money from their deceased father's life  insurance had been partly squandered 
by their mother while they were still minors, had been rejected.  

It  had  been  practically  impossible  for  the  applicants  to  defend  their  property  rights  against  the 
insurance  company  before  reaching  the  age  of  majority.  When  they  did  come  of  age,  their  claim 
against the company had become time-barred. The Court took the view that the strict application of a 
statutory limitation period, without taking into account the particular circumstances of the case, had 
prevented the applicants from using a remedy that in principle was available to them.145 Limitation of 
their  right  of  access  to  a  court  was  disproportionate  in  relation  to  the  aim  of  guaranteeing  legal 
certainty and the proper administration of justice, in violation of Article 6(1).146 

Furthermore,  the  ECtHR  has  also  addressed  domestic  laws  and  judicial  practices  preventing 
claimants  from  benefiting  from  postponements  of  the  dies  a  quo  whenever  they  lack  knowledge  of 
their  damage,  causation  or  identity  of  the  defendants.  In  Szwagrun-Baurycza  v.  Poland  the  Court 
concluded that there  had been a violation of Art 6 because the  applicant  was made  to shoulder  “an 
unfair burden in the course of the proceedings to the point where she was denied effective access to court” on 
the  ground  that  the  domestic  courts  did  not  take  into  consideration  her  “difficulty  in  establishing  the 
names and addresses” of the persons potentially interested in the outcome of the case. 147 

In  Eşim  v.  Turkey148  the  Court  established  the  general  principle  that  “in  personal  injury  compensation 
cases, the right of action must be exercised when the litigants are actually able to assess the damage that they 
have suffered.” More recently, in Howald Moor and Others v. Switzerland149 the Court held that in cases 
where it was scientifically proven that a person could not know that he or she was suffering from a 
certain disease, that fact should be taken into account in calculating the limitation period.150  

In  the  light  of  all  above  precedents  it  is  clear  that  consideration  of  the  requirements  of  Art  6  is 
important  when  formulating  rules  of  limitation.  The  rulings  of  the  ECtHR  give  important  guidance 
for  the  formulation  of  rules  of  limitation  for  claims  arising  out  of  cross  border  traffic  accidents.  For 
example, although there is no indication from the ECtHR as to what would be acceptable in terms of a 
minimum overall time limit, it does seem that any restrictions based on the need for legal certainty in 
relation to the reliability of evidence will need to be proportionate. It is relevant in this regard that in 
many  road  accidents,  evidence  is  generally  based  on  the  information  collected  by  local  authorities, 
which is not subject to any particular deterioration due to the passage of time. The cases also seem to 
indicate that absolute, or long stop limitation, should be avoided.  

144 Judgment of 7 July 2009, at www.hudoc.echr.coe.int. 
145 “La Cour estime que l’application rigide du délai de prescription, qui ne tient pas compte des circonstances particulières 
de l’affaire, a, en l’espèce, empêché les requérantes de faire usage d’un recours qui leur était en principe disponible”. 
146  In  particular,  the  Court’s  conclusion:  “la  Cour  estime  qu’en  l’espèce  la  limitation  au  droit  d’accès  à  un  tribunal 
imposée aux requérantes n’était pas proportionnée au but visant à garantir la sécurité juridique et la bonne administration 
de la justice.” 
147 Judgment of 24 October 2006 (final 24 January 2007), in www.hudoc.echr.coe.int. 
148 Judgment of 17 September 2013, in www.hudoc.echr.coe.int. 
149 Judgment of 11 March 2014 (final 11 June 2014), in www.hudoc.echr.coe.int. 
150 “… la Cour estime que, lorsqu’il est scientifiquement prouvé qu’une personne est dans l’impossibilité de savoir qu’elle 
souffre d’une certaine maladie, une telle circonstance devrait être prise en compte pour le calcul du délai de péremption ou de 
prescription.” 

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With  regard  to  the  calculation  of  time,  it  is  clear  that  time-limits  should  not  start  to  run  until  the 
claimant is able to assess the damage that they have suffered. Moreover, they should be in a position 
to  know  the  identity  and  addresses  of  potential  defendants.  In  relation  to  the  claims  of  minors  and 
people with disabilities, it is clear that ECtHR case-law is against any strict application of time-limits. 
A reasonable protection of such claimants may be obtained by postponing the commencement of the 
relevant  time-limit  to  their  eighteenth  birthday  or,  at  least,  by  granting  courts  an  additional 
discretionary power to consider the particular circumstances of the case. 

2.  CJEU Case Law  

There is some CJEU case law which also deals with the issue of limitation periods. The CJEU made it 
clear  that  Members  States,  when  implementing  a  Directive  which  does  not  provide  for  limitation 
periods,  are  not  entirely  free  to  establish  time-limits  for  claims  which  are  within  the  scope  of  the 
Directive. The introduction of a time-limit by national law is not precluded by EU law “provided that 
the time-limit is no less favourable than those governing similar domestic applications (principle of equivalence) 
and  is  not  framed  in  such  a  way  as  to  render  impossible  in  practice  the  exercise  of  rights  conferred  by 
Community law (principle of effectiveness).”151 

If the domestic law does not satisfy this key principle then the CJEU has held that: 

“It is settled case-law that if the national court finds that the national provision laying down the time-limit is 
not compatible with the requirements of Community law and that no compatible interpretation of that provision 
is possible, that court must refuse to apply it.”152 

With  regard  to  the  principle  of  effectiveness  the  CJEU  has  held  that  it  is  intended  to  ensure  that 
limitation  periods  be  extended  where  the  claimant's  delay  in  bringing  a  claim  is  attributable  to 
particular objective and subjective factors affecting his awareness of the circumstances and the rights 
substantiating his action. For instance, the Court has developed the general principle that time-limits 
do not start to run against individuals who are “unable to ascertain the full extent of their rights”. Hence, 
the claimants' “state of uncertainty” should be taken into consideration.153 

In  the  light  of  the  so  construed  principle  of  effectiveness  the  CJEU  has  also  confirmed  its  negative 
view  of  domestic  laws  providing  for  time-limits  running  from  the  date  of  the  tortious  conduct 
without  considering  the  claimants'  situation.  In  Vincenzo  Manfredi  and  Others  v.  Lloyd  Adriatico 
Assicurazioni  SpA  and  Others  it  held  that  it  is  for  the  national  court  to  determine  whether  a  national 
rule  which  provides  that  the  limitation  period  for  seeking  compensation  for  harm  caused  by  an 
agreement  or  practice  prohibited  under  Article  81  EC  begins  to  run  from  the  day  on  which  that 
prohibited agreement or practice was adopted. Nevertheless the CJEU pointed out that  

“A  national  rule  under  which  the  limitation  period  begins  to  run  from  the  day  on  which  the  agreement  or 
concerted practice was adopted could make it practically impossible to exercise the right to seek compensation for 
the harm caused by that prohibited agreement or practice, particularly if that national rule also imposes a short 
limitation period which is not capable of being suspended … In such a situation, where there are continuous or 
repeated infringements, it is possible that the limitation period expires even before the infringement is brought 
to an end, in which case it would be impossible for any individual who has suffered harm after the expiry of the 
limitation period to bring an action.” 154  

151 C-125/01 Peter Pflücke v. Bundesanstalt für Arbeit [2003] ECR I-09375.  
152 Ibid.  
153 See Theresa Emmott v. Minister for Social Welfare and Attorney General, CJEU, 25 July 1991, Case C-208/90, ECR 
1991 I-04269.  
154 CJEU (Third Chamber), 13 July 2006, Joined Cases C-295/04 to C-298/04, ECR 2006 I-06619. 

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It is possible to discern some similarities between the approach of the CJEU and that of the ECtHR. 
There is no indication from the CJEU as to the minimum requirement for an overall time limit. There 
are  however,  indications  that  the  domestic  courts  should  always  enjoy  a  certain  margin  of 
appreciation in order to guarantee the principle of effectiveness of the remedies provided by EU laws, 
thereby  suggesting  that  absolute  or  long  stop  limitation  should  be  avoided.  CJEU  rulings  seem  to 
confirm the view that time-limits should not start to run until the claimants are actually able to assess 
their rights and damages.  

III  Existing Proposals for Harmonisation  

The issue of limitation periods for cross border traffic accident victims has already been addressed in 
a  number  of  proposals  on  the  matter.  It  is  worth  taking  note  of  these  proposals  when  considering 
what the minimum content of a new proposal ought to be.  

In 2002 a proposal was put forward by a group, consisting mainly of representatives of the insurance 
industry  and  national  compensation  bodies  together  with  lawyers.  The  proposal  was  supported  by 
the promoters of the Third European Traffic Law Seminar held in Trier on 7 and 8 November 2002 at 
the Academy of European Law (ERA).155  

The main features of the proposal were: 

  That it cover the claimants' direct actions against insurers and guarantee funds in relation to 

cross border RTA cases only; 

  That  it  provided  for  a  single  limitation  period  of  4  years;  Member  States  remain  free  to 

provide for longer time-limits; 

  The  time-limit  starts  to  run  from  the  date  of  the  accident;  there  is  no  provision  as  to  the 
relevance of the claimant's knowledge of damage, causation and/or identity of defendants; 
  For suspension of the running of time in the period between the claimant's submission of his 
claim  to  the  company/body  (insurer,  claim  representative,  compensation  body)  and  the 
defendant's rejection of the claim; 

  For a duty on the foreign insurer or his claims representative to inform the injured party of 

the rules of limitation once he/she has declared his/her loss or damage. 

The Trier proposal was considered by the Committee on Legal Affairs of European Parliament in the 
course of the debate in 2003, on the future 5th Motor Insurance Directive for RTAs and whether the 
Directive  should  contain  harmonised  rules  of  limitation.  The  Committee  made  a  proposal  which 
included: 

  The following new recital: “Regulation of the period within which accident victims' damage claims 
lapse  varies  widely  in  the  European  Union.  The  limitation  periods  laid  down  in  law  range  from  one 
year  (Spain),  through  two  years  (Italy),  three  years  (Germany,  Austria,  Finland  and  Portugal),  five 
years  (Belgium,  the  Netherlands  and  Denmark)  and  10  years  (France)  to  30  years  (Luxembourg). 
Moreover the beginning of the limitation period is determined by either objective or subjective criteria. 
It therefore seems appropriate to establish a uniform limitation period. The competence of the European 
Union  to  introduce  a  direct  claim  includes  the  power  to  lay  down  the  limitation  period.  A  four-year 
period from the date of the accident would seem to be appropriate” 

155  The  recommendations  of  the  Third  European  Transport  Law  Seminar  are  attached  to  the  following  Session 
document  by  the  European  Parliament’s  Committee  on  Legal  Affairs  and  the  Internal  Market:  Report  on  the 
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  of  the  European  Parliament  and  of  the  Council  on 
insurance  against  civil  liability  in  respect  of  the  use  of  motor  vehicles  (COM(2002)  244  –  C5-0269/2002  – 
2002/0124(COD)), 10 October 2003, Final A5-0346/2003. 

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  An additional paragraph stating: “That right shall lapse after four years. The limitation period shall 

run from the time of the accident”156 

On  27  November  2003  the  Council  of  the  European  Union  reached  a  political  agreement157that 
rejected the Parliament's suggestion.158 

It can be noted that both of these proposals suggest the adoption of the same basic time-limit: 4 years. 
There  is  no  suggestion  of  an  objective/long  limitation  period.  The  proposals  also  unanimously 
recommend that time should run from the date of the accident and that the running of the limitation 
period  should  be  suspended  where  a  claim  has  been  submitted  to  the  claim  representative,  the 
insurer,  the  compensation  body  or  the  guarantee  fund  in  the  Member  State  in  which  the  claimant 
resides, until the claim is rejected by that party. 

A  further  proposal  was  made  by  PEOPIL  in  2012  in  response  to  the  Commission  2012  public 
consultation.159  The  proposal  is  lengthy  and  very  detailed,  covering  all  aspects  of  limitation.  Whilst 
such an approach would not fit with the minimum standards approach recommended in this report, 
it is worth noting that the proposal also suggests a 4 year limitation period for claims against insurers 
or  compensation  bodies  and  interruption  of  time  upon  the  making  of  a  claim  to  an  insurer,  claims 
representative or compensation body. These aspects are shared by all of the proposals.  

IV  Suggested Minimum Contents 

As  set  out  in  Section  4  of  this  report,  the  best  solution  to  the  problem  of  the  application  of  foreign 
limitation  rules  would  be  to  harmonise  rules  for  actions  available  under  the  MID.  The  form  of 
harmonisation which would best accord with the principles of subsidiarity and proportionality would 
be  harmonisation  of  minimum  standards  wherever  possible,  leaving  Member  States  free  to  apply 
domestic standards which are more favourable to the claimant. 

With regard to the precise content of a harmonising measure, the discussion in this section of the case 
law of the ECtHR and the CJEU, along with existing and proposed harmonisation measures, provides 
a useful guide to what should be included. However, it is impossible to distill from the examination 
of  these  sources  many  rules  which  are  common  to  all  of  them.  There  are  only  two  common  points 
which arise from the proposals which are specific to RTAs. These are: 

 

rule 1: introduction of a four year limitation period applying to actions against: 
      (1) the insurance undertaking covering the person responsible against civil liability under 

Article 18 MID  

       (2) the compensation body provided by Articles 24 and 25 MID in respect of any loss or 
injury or  death resulting from accidents occurring in  a Member  State  other than the 

156    The  Committee’s  justification  being:  “Regulation  of  the  period  within  which  damages  claims  by  accident  victims 
lapse  varies  widely  in  the  European  Union.  The  limitation periods  laid  down in  law  range  from one  year  (Spain),  to  two 
years (Italy), three years (Germany, Austria, Finland and Portugal), five years (Belgium, Netherlands and Denmark), ten 
years  (France)  to  thirty  years  (Luxembourg).  The  details  (beginning  of  the  limitation  period  according  to  objective  or 
subjective  criteria)  present  an  even  more  confusing  picture.  It  therefore  seems  appropriate  at  least  to  harmonise  the 
limitation period for direct claims, which is in practice of overwhelming importance. The competence of the European Union 
to introduce a direct claim includes the power to lay down the limitation period applicable.” 
157 See the Common position adopted by the Council on 26 April 2004 with a view to the adoption of a Directive 
of  the  European  Parliament  and  of  the  Council  amending  Council  Directives  72/166/EEC,  84/5/EEC, 
88/357/EEC and 90/232/EEC and Directive 2000/26/EC of the European Parliament and of the Council relating 
to insurance against civil liability in respect of the use of motor vehicles, 16182/2/03 REV 2 ADD 1. 
158 The Council did not provide an explanation as to this last comment.  
159  Available 
european_organisation_of_personal_injury_lawyers_annex1_en.pdf.  

http://ec.europa.eu/justice/newsroom/civil/opinion/files/121031/organisations/pan-

at: 

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Member  State  of  residence  of  the  injured  party  which  are  caused  by  the  use  of 
vehicles insured and normally based in a Member State. 

 

rule  2:  the  running  of  the  time-limit  provided  by  rule  1  is  suspended  during  the  period 
between the claimant's submission of his claim to 

(1)  the  insurance  undertaking  of  the  person  who  caused  the  accident  or  its  claims 

representative provided by Articles 21 and 22 MID, or 

(2)  the  compensation  body  provided  by  Articles  24  and  25  MID,  and  the  defendant's 

rejection of the claim. 

These  two  rules  could  form  part  of  harmonizing  legislation  and  could  both  be  formulated  as 
minimum  standards.  A  time-limit  of  4  years  takes  into  account  that  in  cross  border  litigation  the 
length  of  time  for  investigations  about  the  accident,  assessment  of  damages  and  gathering 
information  about  legal  initiatives  is  generally  much  longer  than  in  domestic  claims.  A  four  year 
period is also common to all proposals addressing the harmonization of limitation law in this area. 

The  rule  relating  to  suspension  of  the  running  of  time  takes  into  account  the  fact  that  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  is  because  the  gathering  of 
information  about  an  accident,  which  occurred  in  a  country  foreign  to  the  claimant,  can  take 
considerable time. The rule, as expressed here, provides for the suspension of the period as soon as a 
claim is made to the insurer or the compensation body, thus allowing the claimant an opportunity to 
negotiate  the  settlement  of  the  claim,  whilst  at  the  same  time  only  suspending  the  running  of  time 
once the defendant is aware of the claim and is actively considering it. This is different to the more 
onerous position (for  the  claimant) in some  states at  present,  where  time  can  only be suspended by 
the issuing of formal court proceedings. Time will begin to run again as soon as the claim is rejected 
by the defendant, thus balancing the position of the two parties, however, it would also be advisable 
to grant  to the  claimant a  minimum period of  six  months after the  end  of the  suspension period, if, 
when the period of suspension ends, the remaining part of the limitation period is shorter than  that. 
This  measure  considers  that  in  cross  border  litigation  cases  the  steps  enabling  the  claimant  to  issue 
court proceedings generally involve a considerable amount of time and various lengthy activities (for 
example,  there  may  be  the  need  for  a  particular  notarized/legalized  power  of  attorney,  or  of  the 
translation of the writ of summons into the foreign defendant's language; the drafting of the writ of 
summons  itself  as  well  as  the  lawyer's  mandatory  explanation  of  its  contents  to  the  claimant  takes 
time, especially whenever foreign lawyers and/or claimants are involved). 

The  adoption  of  these  rules  would  leave  some  significant  problems,  arising  from  divergences  in 
national  rules,  unaddressed.  Although  there  is  no  consensus  in  the  existing  proposals,  issues 
concerning when time should begin to run and what the position ought to be with regard to children 
and those with disabilities also deserve attention.  

With regard to the dies a quo, it has been shown in section 2 above, as well as in this section, through 
analysis of the jurisprudence of the ECtHR and the CJEU, that there has been a tendency to expand 
rules of limitation in the  claimant's favour, so as to take account of the  claimants' knowledge of the 
extent  of  the  damage  suffered,  issues  of  causation  and  the  defendants'  identity.  There  is  also  a 
tendency towards considerable margins of judicial appreciation of the particular circumstances of the 
individual case. Nevertheless, the system should also enable defendants to have some certainty about 
the extent to which they are exposed to the  obligation of providing compensation. The proposal for 
harmonisation of limitation rules should make it clear that time will run from the date of knowledge 
of the victim. The date of knowledge is the date on which the injured party knows or his able to know 
the  following  facts:  the  extent  of  the  injury,  loss  or  damage  (including  the  stabilisation  of  the 
injuries/diseases);  that the  injury, loss or  damage is attributable  in whole or  in  part to the  accident; 

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the  identity  of  the  person  liable  and/or  the  insurance  undertaking  covering  the  person  responsible 
against  civil  liability  and/or  the  claim  representative  and/or  the  compensation  body  which  is 
responsible for providing compensation. 

Finally, with regard to children and those with disabilities, as was shown above, it can, in effect, be 
impossible for such persons to access justice until they reach the age of majority or until they are no 
longer affected by the disability. Rules which do not reflect this position run the risk of breaching Art 
6  ECHR  and  Art  47  of  the  Charter  of  Fundamental  Rights.  As  such  it  would  be  important  for 
harmonised rules to provide that time should not begin to run against such claimants until they reach 
the age of majority or are no longer affected by disability.  

V  Conclusion 

The suggestions here are for rules covering four essential areas of a regime of limitation. They do not 
resolve  the  uncertainty concerning every possible  issue  which  might arise. Instead they cover those 
rules which are most likely to give rise to uncertainty and dispute following a cross border RTA. It is 
submitted  that  the  adoption  of  the  measures  described  here  would  provide  a  predictable  baseline 
minimum standard and would remove the vast majority of issues which currently cause uncertainty, 
additional  cost  and  delay.  On  the  other  hand,  the  rules  are  purposely  kept  as  simple  as  possible  in 
order to keep interference with national regimes to a minimum. Any remaining issues not covered by 
the  proposed  harmonised  rules  set  out  here  could  be  dealt  with  by  the  national  rules  of  the  forum. 
Whilst this would not produce an entirely coherent approach, it is submitted that it would be a way 
of  beginning  a  process  of  convergence  which  would  address  the  need  for  harmonization,  whilst 
respecting the principles of subsidiarity and proportionality. 

6 Conclusion – The Added Value of Harmonisation  

This  report  has  identified  a  number  of  ways  in  which  visiting  victims  of  a  cross  border  RTA  will 
experience detriment because of the current situation with regard to rules of limitation. Such victims 
have the right to bring an action before the courts of their Member State of residence, in accordance 
with  the  rights  granted  to  them  by  the  MID.  The  measures  of  the  MID  aim  to  provide  a  level  of 
protection,  ensuring  that  the  claim  is  dealt  with  in  a  comparable  way,  regardless  of  where  in  the 
Union the accident occurs. However, victims still face the prospect of having the dispute determined 
in  accordance  with  a  foreign  law,  including  the  foreign  rules  of  limitation.  This  gives  rise  to  the 
potential for the following ‘costs' for victims: 

I  Complete loss of claim where the claim becomes time barred or the 

right is extinguished 

The cost to the claimant of having lost the right to claim obviously varies depending on the particular 
losses  suffered.  However,  for  cases  involving  bodily  injury  a  recent  Insurance  Europe  report  states 
that  the  cost  of  bodily  injury  claims  in  Europe  is,  on  average,  €15,970.160  This  figure  is  used  as  an 
estimate of the average amount of loss for all cases involving bodily injury.  

160 Insurance Europe is a European insurance federation representing insurance undertakings across Europe. It’s 
members  are  the  national  insurance  associations  of  34  European  countries.  The  data  is  taken  from  a  report: 
‘European 
at 
http://www.insuranceeurope.eu/sites/default/files/attachments/European%20motor%20insurance%20market
s.pdf.  

November 

Insurance 

available 

Market’ 

Motor 

2015 

p33, 

at 

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For  damage  only  claims  there  are  no  available  figures  covering  the  whole  of  the  EU.  For  the  UK,  a 
national  report  suggests  that  the  average  cost  of  a  damage  only  accident  is  £2,048  (€2540161).162 
However, Insurance Europe reports that there is significant variation in costs between MS on account 
of the cost of repairs.163 This makes it difficult to provide an average cost for damage only claims.  

It is also not possible to calculate an overall annual cost for the loss of the ability to claim because it is 
unknown  how  many  claims  fail  because  a  visiting  victim  has  not  complied  with  the  applicable 
limitation rules.164 The best that can be said in this regard is that personal injury claimants will lose on 
average €15,970 if their claim becomes time barred or extinguished.  

II 

Increased  legal  costs  due  to  the  uncertainty  of  the  application  of 
foreign rules 

In  the  majority  of  cases,  the  claimant  will  not  lose  the  right  to  claim,  but  will  face  obstacles  in 
accessing  justice,  owing  to  the  application  of  foreign  limitation  rules.  These  obstacles  result  in  a 
number of financial costs to the claimant, in the form of:  

Increased lawyers' fees 

o 
o  Cost of expert evidence on foreign rules  
o  Cost of translation of documents  
o  Additional court fees  

Claimants may also face an increase in the time taken to conclude claims owing to the contention of 
issues  of  limitation.  This  could  lead  to  a  possible  delay  in  receiving  compensation,  as  well  as  a 
possible delay in rehabilitative treatment.  

Claimants  can  also  experience  emotional  costs  in  the  form  of  distress  and  anxiety  created  by  the 
uncertainty about the application of foreign limitation rules.  

It is not possible to quantify all of these costs in monetary terms. However, as part of the consultation 
with claimant lawyers,165 information was gathered as to the number of additional hours of work by 
claimant lawyers limitation issues required. The claimant lawyers consulted report that they spend an 
additional amount of hours on account of limitation issues in the range of from 1-2 hours up to 10-15 
hours. The mean number of additional hours spent is 3.5.  

The  Commission  2009  report  suggests  that  average  lawyer  hourly  fees  are  most  likely  to  be  €100  – 
€250.166  Using  the  mid-range  value  of  €175  per  hour,  the  average  additional  cost  of  lawyers'  fees 
generated by limitation issues would be €175 for 3.5 hours totalling €610 per claim. As set out above, 
there  are  estimated  to  be  248,000  cases  annually  concerning  visiting  victims  who  experience  issues 
relating to limitation. €610 for each of these claims amounts to an overall additional cost of increased 
legal fees of €151,280,000 each year throughout the EU.  

161 Conversion completed on 8 April 2016 using an exchange rate of £1.24.  
162 ‘A valuation of road accidents and casualties in Great Britain in 2012’ UK Department for Transport, available 
at 
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/244913/rrcgb2012-
02.pdf.  
163 n138 above.  
164 See the Commission 2009 report n15 above, at p240.  
165 As outlined at 1(c) above.  
166 n15 above at p120.  

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Limitation Periods for Traffic Accidents  

The  cost  of  expert  advice  on  foreign  limitation  rules  will  vary  depending  on  whether  the  expert 
charges an hourly rate or a fixed fee. It will also vary depending on the complexity of the case and the 
MS where the expert is situated. However, statistics in the Commission 2009 report suggest that the 
fees  most  often  charged  are  between  €250  and  €350.167  Lawyers  report  that  they  acquire  basic 
information about foreign  limitation rules in 66% of cross border RTA cases. If the  number  of cases 
where  limitation issues arise annually  is 775,000, and advice is required in 66% of those cases, then 
advice is required in 511,500 cases. This gives an average of €300 across 511,500 cases per year at an 
overall estimated cost of €153,450,000.     

This figure does not take into account any translation costs, or any additional court costs incurred on 
account  of  limitation  issues,  for  which  there  is  no  available  data.  On  the  other  hand,  these  figures 
represent  potential  overall  estimates.  It  is  important  to  acknowledge  that  not  all  accident  cases  are 
contentious,  many  cases  are  settled  between  a  claimant  and  an  insurer  without  the  need  to  instruct 
lawyers, or obtain expert evidence. However, there is no way of knowing how many claims, of those 
identified as being likely to give rise to limitation issues, will actually do so. The best that can be said 
is that there is potential for such additional costs in the number of cases estimated.  

Furthermore,  many  minor  collisions  may  not  warrant  the  expenditure  of  €900,  or  more,  obtaining 
information of foreign limitation periods, because the value of the overall claim may be less than this. 
Such claimants  may opt to give up their right to claim altogether. As  such  there  is potential for  the 
issue  of  limitation  to  create  a  barrier  to  the  making  of  a  valid  claim  for  compensation  in  low  value 
claims, which could be removed by the harmonising of rules of limitation.     

The  total  calculable  estimate  of  the  additional  financial  cost  of  the  application  of  foreign  limitation 
rules to claims brought by visiting victims, is therefore, up to €304,730,000 per year when the costs of 
additional legal fees and of expert evidence are added together.   

167 n15 above at p121.  

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69 

 
 
 
 
 
 
 
                                                           
European Added Value Assessment 

Selected Bibliography 

Books  
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Bona  M  Mead  P  and  Lindenbrgh  S  (eds.)  Fatal  Accidents  and  Compensation  of  Secondary  Victims  in 
Europe (XPL 2005) 
Bona M La responsabilità civile per i danni da circolazione di veicoli, (Milano, 2010) 
Briggs A Civil Jurisdiction and Judgments (6th edn, Informa 2015) 
Brüggemeier G Common principles of Tort Law (BIICL 2004) 
Dickinson A The Rome II Regulation (OUP 2010) 
Dickinson A and Lein E The Brussels I Regulation Recast (OUP 2015) 
Ernst W, The Development Of Traffic Liability Vol 5 Comparative Studies in the Development of the Law of 
Torts in Europe (Cambridge University Press 2010) 
Esplugues et al Application of foreign Law (Sellier 2011) 
Hondius E Extinctive Prescription. On The Limitation of Actions (The Hague 1995) 
Kramer X and Rhee C Civil Litigation in a Globalising World (Springer 2012) 
Marongiu Buonaiuti F Le obbligazioni non contrattuali nel diritto internazionale privato (Giuffrè, 2013);  
McGee A Limitation Periods (Sweet and Maxwell 2010) 
Merkin R and Rodger A, EC Insurance Law (Addison Wesley Longman, 1997) 
Merkin R and Hemsworth M The Law of Motor Insurance (2edn, sweet and Maxwell 2015) 
Oliphant and Wagner (eds) Employers' Liability and Workers Compensation (De Gruyter 2012) 
Storskrubb E Civil Procedure and EU Law (OUP 2008) 
Von Bar C The Common European Law of Torts, Volumes I and Volumes II (Oxford University Press 2000) 
Zimmermann R Comparative foundations of a European Law of Set-Off and Prescription (Cambridge, 2002) 

Articles  
Armstrong  C  ‘The  Hague  Convention  on  the  Law  Applicable  to  Traffic  Accidents:  search  for  Uniformity 
Amidst Doctrinal Diversity' (1972) Columbia Journal of Transnational Law 74 
Bona M Appunti sulla giurisprudenza comunitaria e CEDU in materia di prescrizione e decadenza: il 
parametro della «ragionevolezza», in Responsabilità civile e previdenza, 2007, no. 7-8, 1709-1736 
Gallo P Prescrizione e decadenza in diritto comparato, in Digesto (1996) Disc. Priv. XIV, 248 
Hodson  D  and  Maher  I  ‘  The  Open  Method  as  a  New  Mode  of  Governance:  The  Case  of  Soft 
Economic Policy Co-ordination' (2001) JCMS 719.  
Papettas J ‘Direct Actions Against Insurers of Intra Community Cross Border Traffic Accidents: Rome 
II and the Motor Insurance Directives' (2012) 8 Journal of Private International Law 297 
Tulibacka ‘Europeanization of Civil Procedures: In Search of a Coherent Approach' (2009) CMLR 1527 
Vernadaki ‘Civil procedure  Harmonization in  the  EU: Unravelling the  Policy  Considerations' (2013) 
JCER 297, at 308 
Wagner  G  ‘The  Common  Frame  of  Reference  for  European  Private  Law  –  Policy  Choices  and 
Codification Problems' OJLS (2008) 659 
Wagner  G  ‘Harmonisation  of  Civil  Procedure  –  Policy  Perspectives'  in  X.E.  Kramer  and  C.H.  van 
Rhee (eds) Civil Litigation In A Globalising World (Springer 2012) 
Weatherill S ‘Why Object to the Harmonization of Private Law by the EC? (2004) ERPriv L 633 
Zekoll ‘comparative civil procedure' Reimann and Zimmermann (eds)  Oxford Handbook of Coparative 
Law (OUP 2006) 1328 at 1352 

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International Law [April 1969] 8 International Legal Materials (1969)785 

PE 581.386 

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Limitation Periods for Traffic Accidents  

E.W.  Essen,  Conference  de  La  Haye  de  Droit  International  Prive,  "Actes  et  Documents  de  la  XIN 
Session," 1970 
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liability  in  respect  of  the  use  of  motor  vehicles  and  amending  Directives  73/239/EEC  and 
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Council  on  the  law  applicable  to  non-contractual  obligations  ("Rome  II")'  27.6.2005,  A6-0211/2005 
FINAL. 
REPORT  with  recommendations  to  the  Commission  on  limitation  periods  in  cross  border  disputes 
involving injuries and fatal accidents (2006/2014(INI)), 23 November 2006, FINAL A6-0405/2006 
Renda  A  and  Schrefler  L,  ‘Full  Compensation  Of  Victims  Of  Cross  border  RTAs  In  The  EU:  The 
Economic  Impact  Of  Selected  Options'  (2007)  a  study  prepared  for  the  European  Parliament  PE. 
378.30 
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victims of  cross border  RTAs in  the  EU: comparison  of national practices, analysis  of problems and 
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<http://ec.europa.eu/internal_market/insurance/docs/motor/20090129report_en.pdf>  
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final;  Council  of  the  European  Union,  The  Stockholm  Programme  –  An  open  and  secure  Europe 
serving the citizen, 2010/C 115/01 
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Implementing the Stockholm Programme (2010) COM 171 
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Economic  And  Social  Committee  And  The  Committee  Of  The  Regions  ‘Delivering  an  area  of  freedom, 
security and justice for Europe's citizens, Action Plan Implementing the Stockholm Programme' (2010) COM 
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European Transport Safety Council 9th Road Safety Performance Index Report June 2015 

cross  border  victims 

the  position  of 

improving 

for 

EP 581.386 

71 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
legal 

in  accessing 

Widely  differing  limitation  periods  for  tort  claims  across  the 
European  Union  (EU)  Member  States  can  lead  to  victims  of 
cross-border  road  traffic  accidents 
losing  their  right  to 
compensation.  This  European  Added  Value  Assessment 
(EAVA)  sketches  out  the  weaknesses  of  the  relevant  existing 
legal  frameworks  which  create  obstacles  for  victims  of  cross-
justice. 
border  road  traffic  accidents 
Furthermore,  the  EAVA  identifies  the  costs  that  arise  on 
account  of  differing  rules  on  limitation  periods,  not  only  in 
terms of length of time but also with regard to the beginning 
limitation  period,  the  procedural  requirements  for 
of  a 
stopping the running of a limitation period, and application to 
minors  and  disabled  people.  The  EAVA  demonstrates  that 
differing  rules  in  the  application  of  limitation  periods  can 
generate  costs  such  as  additional  lawyer's  fees  and  fees  for 
expert  evidence  on  foreign  rules.  Finally,  the  EAVA  outlines 
two  rules  for  harmonising limitation  periods  within  the  EU in 
the form of minimum standards that could generate European 
added  value  by  simplifying  the  existing  legal  framework  and 
offering greater legal certainty for victims of cross-border road 
traffic accidents.   

This is a publication of the European Added Value Unit 
EPRS | European Parliamentary Research Service 
European Parliament 
The content of this document is the sole responsibility of the author and any opinions expressed therein 
do  not  necessarily  represent  the  official  position  of  the  European  Parliament.  It  is  addressed  to  the 
Members and staff of the EP for their parliamentary work. 

PE 581.386 

ISBN 978-92-823-9547-9 

doi:10.2861/089439 

QA-04-16-567-EN-N 

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