CELEX: 51982PC0069
Language: en
Date: 1982-02-22
Title: Amendment of the proposal for a Second 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 (Submitted to the Council by the Commission pursuant to the second paragraph of Article 149 of the EEC Treaty)

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 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                                          COM(82)69 final
                                                          Brussels , 22 February 1982
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                            Amendment of the proposal for a
         | /                         - » »
                                  Second Council Directive
        Ir !   c     • v. - ■ . .
 on the approximation of the laws of the Member States relating to insurance
              . c- ::^.v . ..          /
       against civil liability in respect of the use of motor vehicles
    ( Submitted to the Council by the Commission pursuant to the second
      paragraph of Article 149 of the EEC Treaty )
 C0M(82 ) 69 final
 ---pagebreak---                                    Explanatory Memorandum
In the Light of the Opinions delivered by the European Parliament'' and
the Economic and Social Committee ^ on the proposal for a Second 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 o
vehicles ^, the Commission hereby submits a revised version of its
proposal .                                                           ,
                                                                         ♦
The principal amendments to the original text are as follows :
                                                                 1
                                                              »        ■ 1
1 . A separate ceiling is fixed for damage to property ( Article 1.(1 )).
2 . The Member States may limit or exclude payment of compensation by
    the guarantee fund in respect of damage      property caused by an
    unidentified vehicle ( Article 1(3 )).
3 . The insurer may not rely / for the purpose of refusing to make payment
    to an injured third,party , upon certain circumstances which are the
    subject of exclusion clauses in the policy ( Article 2 ).
                                              \
4 . The Member States may authorize the exclusion from cover of members
    of the family in respect of damage to property ( Article 3 ).
5 . Longer periods are allowed for implementation of the increases in
    compulsory insurance amounts ( Article 5 ).
1 . Minutes of the Meeting of 14.10.1981 ( doc . PE 74.857 / p. 11 )
2 . Session of 25.2.1981 ( 0J C 138 of 9.6.1981 / p. 15 ).
3 . 0J C 214 of 23.8.1980 / p. 9 .
 ---pagebreak---                                          - 2 -
1 . The Commission has incorporated the proposal made by the Economic and
Social Committee and Parliament by fixing a separate limit / within the
compulsory insurance amounts proposed for all damage / 'for damage to
property . The effect of the last sentence in the first paragraph of
Article 1(2 ) is to set aside such limits where damage in respect of
personal injuries does not equal the difference between the amount
available for all damage to property and personal injuries / and the .
limit fixed for damage to property alone , namely 280 000 ECU .
The second sub paragraph of Article 1(2 ) has been brought into line with
Council Regulation ( EEC) No 3180/78 of 18 December 1978^ and Council Reg­
ulation ( EEC/ Euratom) No 3308/80 of 16 December 1980^.
2 . The Commission does not consider it advisable to allow the Member States ,
as both Parliament and the Economic and Social Committee requested/ to
fix an excess below which the guarantee fund would not pay compensation
in respect of damage to property caused by an uninsured vehicle .
                                                  %       *
Firstly , there is a risk that the amount concerned would vary considerably
from one Member State to another / and nothing would prevent a State from
laying down such a high excess that only exceptional cases would be
                                              V
taken into consideration .
Secondly / and more importantly / such a provision would result in victims
in the same Member State continuing to be treated differently depending
on whether the damage to property was caused by an uninsured vehicle
registered in that State or by one registered in another Member State .
This is because in the latter case / the national bureau in the country
in which the accident occurred / in accordance with the liability it has
undertaken and to which the first indent of Article 2(2 ) of the First
Directive refers / would settle the claim . as if the vehicle were insured,
i.e.   without deducting any excess ..
                            t
However / the Commission has amended its proposal in line with the opinions
expressed by Parliament and the Economic and Social Committee by accepting
that Member States may , if they wish / exclude or limit payment of compensation
by the guarantee fund in respect of damage to property caused by an uniden­
tified vehicle .
1 . 0J L 379 of 30.12.1978 , p.1 .
2 . 0J L 345 of 20.12.1980, p.1 .
 ---pagebreak---                                      - 3 -
3 . The Commission has accepted the amendment to Article 2 proposed by
Parliament .  The new version provides that a number of exceptions may
not be relied upon as against third parties ( unauthorized driving , driving
without a licence , non-compliance with the vehicle safety rules ).  In
other words , this provision prohibits the insurer from relying upon the
existence of an exclusion clause relating to one of the above mentioned
circumstances in order to refuse to pay compensation to the victim .    The
Commission nevertheless feels it is essential to retain the principle of
treating as cases of non-insurance those residual cases in which the
insurer can avoid payment of any compensation to the victim ( claim invali­
dated by false declaration of risk , damage caused intentionally in France ):
this hypothesis relates to Article 1(3 ).
4 . In deference to the views expressed by Parliament and the Economic and
Social Committee , the Commission has amended Article 3 to enable Member
States to continue to exclude members of the family but only in respect of
damage to property .
5 . The Commission has also acceded to Parliament 's request that longer
periods be allowed under Article 5 for the . implementation of the increase
                                             I
in the compulsory insurance amounts laid down in Article 1(2 ).
The Commission did not , however , adopt the amendment to Article 4 proposed
by Parliament and the Economic and Social Committee , which consisted of
defining the territory in which the vehcile is normally based as the
territory of the State of which the vehicle bears a properly issued
registration plate .  The Commission maintains that the registration plate
is the only appropriate criterion for identifying vehicles which may no
longer be subjected to insurance checks in other countries .
The adddition of a qualification such as that of whether the registration
plate had been properly issued would jeopardize a large proportion of the
advantages afforded by the First Directive .
In general , the Commission does not feel that a definition of the territory
in which the vehicle is normally based is an appropriate means of dealing
with inproper use of registration plates .
 ---pagebreak---                                     - 4 -
The Commission also did not adopte the text of Article 4(a ) proposed by
Parliament ,, prohibiting the Member States henceforth from imposing a
rating or bonus malus system .   This question falls entirely outside the
scope of its proposal , the main purpose of which is to improve the position
of victims by affording them greater protection and protection which is
comparable regardless of the circumstances of the accident .
 ---pagebreak---                                                                     Annex I
Amendment of the proposal for a Second Council Directive on the approximation
of the laws of the Member States relating to insurance against civil liability
in resnect of the use of motor vehicles .
Original proposal                        New proposal
THE COUNCIL OF THE EUROPEAN COMM­        THE COUNCIL OF THE EUROPEAN COMM­
UNITIES                                  UNITIES
                                     Citations unchanged
                             first five recitals unchanged
                                         sixth recital
WHEREAS it is necessary to make          WHEREAS it is necessary to make
provision for a body to bear second­     provision for a body to bear second­
ary liability for the payment of   .     ary liability for the payment of
compensation in cases where the          compensation in cases where the
vehicle responsible is unidentified      vehicle Responsible is uninsured
or uninsured , or where the insurer      or unidentified ; whereas in the latter
is entitled to disclaim liability ;      case * however , it is permissible that
whereas this latter case must be         compensation should not be paid in
treated in the same way as a case        respect of damage to property , or
of non-insurance ;                       should be paid only within certain
                                         limits , for example by applying an
                                         excess ;
                                new recital
                                         WHEREAS it is in the interest of victims
                                         that the effects of exclusion clauses be
                                         limited to the relationship between the
                                         insurer and the insured person responsible
                                         for the accident ; whereas it is necessary
                                         to provide that all other instances in
                                         which the insurer is entitled to disclaim
                                         liability must be treated as instances
                                         of non-insurance ;
 ---pagebreak---                                             2 -
                                  seventh recital
WHEREAS the members of the family of      WHEREAS the members of the family of
the insured person , dri ver or person    thl; insured person , dri ver or person
liable are deserving of consideration liable are deserving of consideration
as potential injured parties and          as potential injured parties and
should be afforded protection com­        should be afforded protection com­
parable to that of other third            parable to that of other third
parties ;                                 parties , in any event in respect of
                                          their personal injuries ;
                              eighth reci al unchanged
                                          HAS ADOPTED THIS DIRECTIVE :
Article 1                                 Article 1
1 . The contract of insurance             1 . The insurance referred to in Article
referred to in Article 3(1 ) of           3(1 ) of Directive 72 / 166 / EEC shall cover
Directive 72 / 166 / EEC shall cover      both damage to property and personal
both damage to property      and perr     injuries .
sonal injuries .
2 „ Each Member State shall require       2 . Without prejudice to any higher
an unlimited guarantee or shall           guarantees which Member States may
specify amounts up to which such          require at the date of notification :
insurance shall be compulsory .           of this Directive , each Member State
Those amounts shall be not less           shall require a guarantee up to which
than 350 000 EUA per victim for           such insurance shall be compulsory .
damage to property and personal           Those amounts shall be not      less than
injuries or 500 000 EUA for all           350 000 ECU per victim for all damage
damage , including damage to              to property and personal injuries ,
property and personal injuries ,          with a limit of 70 000 ECU for damage
arising cut of a single claim             to property , and 500 000 ECU for all
where there is more than one              damage to property and personal injuries
victim .                                  arising out of a single claim where
                                          there is more than one victim , with
                                          a limit of 100 000 ECU for all damage
                                          to property . The abovement ioned limits
                                          in respect of damage to property shall
                                          apply only where damage in respect of
                                          personal injuries equals or exceeds
                                          280 000 or 400 000 ECU respectively .
 ---pagebreak---                                        - 3 -
 " Unit of account    means the European    ECU " means the unit of account as
 Unit of Account   ( EUA ) as defined     defined by Article 1 of Council
by Article 10 of the Financial            Regulation ( EEC ) no 3130 / 78 ;
 Regulation of 21 December 1977                               the conversion value
applicable to the general budget          in national currency to be adopted
of the European Communities ; the         shall as from 31 December of each year
conversion value in national              be that of the last day of the preceding
currency to be adopted shall as           month of October for which the ECU
from 31 December of each year             conversion values are available in
be that of the last day of the            all the Community currencies .
preceding month of October for
which the EUA conversion values
are available in all the Community
currencies .
3 . Each Member State shall make          3 . Unchanged ,
provision that compensation within
the limits authorized by paragraph
2 for damage to property or personal
injuries caused by an unidentified
vehicle or in respect of which the
insurance obligation provided for
in paragraph 1 has not been satis­
fied shall be borne by a body set
up or authorized by that State .
                                          Each Member State may limit or exclude
                                          the payment of compensation by that
                                          body in respect of damage to property
                                          caused by an unidentified vehicle .
Article 2                                 Article 2
                                          Each Member State shall take the
                                          necessary measures to ensure that
                                          any contractual provision contained
                                          in an insurance policy issued in
                                          accordance with Article 3(1 ) of
                                          Directive 72 / 166 / EEC , which excludes'
                                          from insurance the use or driving of
                                          vehicles by :
                                          - persons who do not have express .
                                             or implied      authori zat ion , or
                                          - persons who do not hold a licence per­
                                             mitting . them to drive the vehicle
                                             concerned ; or
                                          - persons who are in breach of the legal
                                             requirements of a technical nature
                                             concerning the condition and safety
                                             of the vehicle concerned ;
                                          shall , for the purposes of the appli­
                                          cation of Article 3(1 ) of Directive
                                          72 / 166 / EEC , be deemed to be void in
                                          respect of claims by third parties .
 ---pagebreak---                                      - 4 -
 For the purposes of Article 1C3 )         Where an insurer refuses to make
of this Directive and Article 3(2 )        payment by virtue of the law or of
of Directive 72 / 166 / EEC , where an     another contractual provision author­
insurer refuses to make payment by         ized by law,, the vehicle shall be
virtue of the law or of a contrac­         treated as an uninsured vehicle ,,
tual provision authorized by law ,
the vehicle shall be treated as
an uninsured vehicle .
Article 3                                  Article 3
The members of the family of the           The members of the family of the
insured person , driver or any other       insured person , driver or any other
person who is liable under civil           person who is liable under civil
law in the event of an accident ,          law in the event of an accident ,
and whose liability is covered             and whose liability is covered
by civil liability motor vehicle           by civil liability motor vehicle
insurance , shall not be excluded          insurance , shall not be excluded
from such cover by virtue of that          from insurance in respect of their personal
relationship .                             injuries by virtue of that relation­
                                           ship .
Article 4                                  Article 4
The first indent of Article 1(4 ) of       Unchanged
Directive 72 / 166 / EEC is amended as
follows :
                              t
- territory in which the vehicle
   is normally based means :
   the territory of the State
   of which the vehicle bears
   a registration plate .
Article 5                                  Article 5
Member States shall bring into force       Member States shall bring into force
the measures necessary to comply           the measures necessary to comply
with this Directive by 31 December         with this Directive by 31 December
1982 and shall forthwith inform            1982.
the Commission thereof .
                                           However , for the purposes of Article 1(2 ),.
                                           Member States may pake pro­
                                           vision for increasing guarantees to the
                                            levels required by the abovementioned
                                           Article by equal annual increases until
                                           31 December 1986 .   Such increases shall
                                           be not less than one fifth of the diff­
                                           erence between the guarantees in force
                                           at the date of notification    of this
                                           Directive and the levels required by
                                           the said Article .
 ---pagebreak---                                They shall forthwith inform the
                               Commission thereof .
Article 6                      Article 6
This Directive is addressed to Unchanged ?
the Member States .
 ---pagebreak---                                                              Annex II
Draft Letter to the European Parliament
Sir ,
On 14 October 1981 , the European Parliament delivered an Opinion on the
proposal for a Second 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 , submitted to the Council by the Commission
on 7 August 1980 (0 J No C 214 of 21 August 1980, p. 9 ).
I have the honour to inform you that the Commission has submitted to the
Council , in accordance with the second paragraph of Article 149 of the
EEC Treaty , the enclosed amended proposal , which incorporates a number
of the amendments proposed by Parliament .
                                ( Complimentary close )