CELEX: 51988PC0791
Language: en
Date: 1988-12-19
Title: PROPOSAL FOR A COUNCIL DIRECTIVE AMENDING, PARTICULARLY AS REGARDS MOTOR VEHICLE LIABILITY INSURANCE, FIRST COUNCIL DIRECTIVE 73/239/EEC, AND SECOND COUNCIL DIRECTIVE 88/357/EEC ON THE COORDINATION OF LAWS, REGULATIONS AND ADMINISTRATIVE PROVISIONS RELATING TO DIRECT INSURANCE OTHER THAN LIFE ASSURANCE AND LAYING DOWN PROVISIONS TO FACILITATE THE EFFECTIVE EXERCISE OF FREEDOM TO PROVIDE SERVICES AND AMENDING DIRECTIVE 73/239/EEC

No C 65/6                              Official Journal of the European Communities                                    15. 3. 89
                                                              II
                                                      (Preparatory Acts)
                                                 COMMISSION
              Proposal for a Council Directive amending, particularly as regards motor vehicle liability
              insurance, First Council Directive 73/239/EEC, and Second Council Directive 88/357/EEC on
              the coordination of laws, regulations and administrative provisions relating to direct insurance
              other than life assurance and laying down provisions to facilitate the effective exercise of
                             freedom to provide services and amending Directive 73/239/EEC
                                               COM(88) 791 final — SYN 179
                              (Submitted by the Commission to the Council on 3 January 1989)
                                                        (89/C 65/06)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                          authorities, owing to the nature and social implications
                                                                  of such provisisons; whereas those exclusions were to be
                                                                  re-examined after the second Directive had been in force
Having regard to the Treaty establishing the European             for a certain period;
Economic Community, and in particular Articles 57 (2)
and 66 thereof,
                                                                  Whereas one of the exclusions concerned motor vehicle
Having regard to the proposal from the Commission,                liability insurance, other than carrier's liability;
In cooperation with the European Parliament,
                                                                  Whereas, however, when the second Directive was
                                                                  adopted the Commission gave an undertaking to present
                                                                  to the Council as soon as possible a proposal concerning
Having regard to the opinion of the Economic and
                                                                  freedom to provide services in the area of insurance
Social Committee,
                                                                  against civil liability in respect of the use of motor
                                                                  vehicles (other than carrier's liability);
Whereas in order to develop the internal insurance
market the Second Council Directive 88/357/EEC of 22
June 1988 on the coordination of laws, regulations and            Whereas, subject to the provisions of the second
administrative provisions relating to direct insurance            Directive concerning compulsory insurance, it is appro-
other than life assurance and laying down provisions to           priate to provide for the possibility of large risk
facilitate the effective exercise of freedom to provide           treatment, within the meaning of Article 5 of the said
services and amending Directive 73/239/EEC ('), here-             Directive, for the said insurance class of motor vehicle
inafter referred to as the 'second Directive', made it            liability;
easier for insurance undertakings having their head
office in the Community to provide services in the
Member States, thus making it possible for policyholders
to have recourse not only to insurers established in their
own country, but also to insurers which have their head           Whereas large risk treatment should also be envisaged
office in the Community and are established in other              for insurance covering damage to or loss of land motor
Member States;                                                    vehicles and land vehicles other than motor vehicles;
Whereas the scope of the provisions of the second                 Whereas to ensure the continued proper functioning of
Directive specifically concerning freedom to provide              the green card system and the agreements between the
services excluded certain risks, the application to which         national motor insurers' bureaux it is appropriate to
of the said provisions was rendered inappropriate at that         require insurance undertakings providing motor liability
stage by the specific rules adopted by the Member States'         insurance in a Member State by way of provision of
                                                                  services to join and participate in the financing of the
(') OJ No L 172, 4. 7. 1988, p. 1.                                bureau of that Member State;
 ---pagebreak--- 15. 3. 89                              Official Journal of the European Communities                               No C 65/7
Whereas it is also appropriate to require insurance                  '1.     Every establishment must inform its supervisory
undertakings providing motor liability insurance in a                authority in respect of operations effected by way of
Member State by way of provision of services to join and             provision of services of the amount of the premiums,
participate in the financing of the guarantee fund set up            without deduction of reinsurance, receivable by
in that Member State to pay compensation to the victims               Member State and by group of classes. The groups of
of uninsured or unidentified vehicles;                               classes shall be defined as follows:
                                                                     — accident and sickness (1 and 2),
Whereas in order to ensure that third party claimants are
not prejudiced or put to greater inconvenience where the
                                                                     — motor insurance (3, 7 and 10),
motor liability insurer is operating by way of the
provision of services rather than by way of an estab-
lishment Member States shall require that insurance                  — fire and other damage to property (8 and 9),
undertakings intending to provide services in this
insurance class shall nominate a claims settlement                   — aviation, marine and transport (4, 5, 6, 7, 11 and
represntative to be responsible for the processing and                     12),
settlement of third party claims,
                                                                     — general liability (13),
HAS ADOPTED THIS DIRECTIVE:                                          — credit and suretyship (14 and 15),
                                                                      — other classes (16, 17 and 18).
                           Article 1
                                                                      The supervisory authority of each Member State shall
For the purposes of this Directive:
                                                                      forward this information to the supervisory auth-
                                                                      orities of each of the Member States of provision of
(a) 'first Directive' means Directive 73/239/EEC ( l );               services.'
(b) 'second Directive' means Directive 88/357/EEC;
                                                                                             Article 5
 (c) 'vehicle' means a vehicle as defined in Article 1 (1) of     The following Article 12a is hereby inserted in Title III
     Directive 72/166/EEC O ;                                     of the second Directive:
 (d) 'bureau' means a national insurers' bureau as defined             Article 12a
     in Article 1 (3) of Directive 72/166/EEC;
                                                                      1.     This Article shall apply where an undertaking,
 (e) 'guarantee fund' means the body referred to in                   through an establishment situated in a Member State,
     Article 1 (4) of Directive 84/5/EEC (3).                         covers a risk classified under No 10 of point A of the
                                                                      Annex to the first Directive which is situated in
                                                                      another Member State.
                           Article 2
 In Article 5 (d) of the first Directive the phrase 'risks            2.     The Member State of provision of services shall
 classified under classes 8, 9, 13 and 16 of point A of the           require the undertaking to become a member of and
 Annex' in the first paragraph of point (iii) is hereby               participate in the financing of its national bureau and
 replaced by 'risks classified under classes 3, 8, 9, 10, 13          its national guarantee fund.
 and 16 of point A of the Annex'.
                                                                      The untertaking shall not, however, be required to
                                                                      make any payment or contribution to the bureau or
                           Article 3                                  fund of the Member State of provision of services in
                                                                      respect of risks covered by way of provision of
 The second and third indents in the second paragraph of              services other than one calculated, on the same basis
 Article 12 (2) of the second Directive are hereby deleted.           as for undertakings covering risks in class No 10
                                                                      through an establishment in that State, by reference
                                                                      to its premium income from that class in that State or
                           Article 4                                  the number of risks in that class covered there.
 Article 22 (1) of the second Directive is hereby replaced
 by the following:                                                    3.     The Member State of provision of services shall
                                                                      require the undertaking to ensure that persons
                                                                      pursuing claims arising out of events occurring in its
                                                                      territory are not placed in a less favourable situation
 (') OJ No L 228, 16. 8. 1973, p. 3.                                  as a result of the fact that the undertaking is covering
 (2) OJ No L 103, 2. 5. 1972, p. 1.                                   a risk in class 10 by way of provision of services
 (3) OJ No L 8, 11. 1. 1984, p. 17.                                   rather than through an establishment in that State.
 ---pagebreak--- No C 65/8                             Official Journal of the European Communities                                     15. 3. 89
  In particular, the Member State of provision of                   representative shall not be an establishment within
  services may require the undertaking to nominate a                the meaning of Article 2 (c) of this Directive.'
  representative resident or established in its territory
  who shall be responsible for the handling of claims                                       Article 6
  and possess sufficient powers to bind the undertaking
  in relation to third parties and to represent it in           Member States shall amend their national provisions to
  relations with the courts of that Member State.               comply with this Directive within . . . months of the date
                                                                of its notification (') and shall forthwith inform the
  The representative, who may be an employee of the             Commission thereof.
  untertaking, shall limit his activities on behalf of that
  undertaking to the handling and settlement of such            The provisions amended in accordance with this Article
  claims.                                                       shall be applied within . . . months of the date of the
                                                                notification of the Directive.
  Notwithstanding Article 3, the nomination of the
  representative shall not in itself constitute the                                         Article 7
  opening of a branch or agency for the purpose of
  Article 6 (2) (d) of the first Directive and the              This Directive is addressed to the Member States.
                                                                (*) This Directive was notified to member States on .. .