CELEX: 51989PC0625
Language: en
Date: 1989-12-06
Title: AMENDED PROPOSAL FOR A THIRD 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

COMMISSION OF THE EUROPEAN COMMUNITIES
                                          C0MC89) 625   final -SYN 165
                                          Brussels, 6  December 1989
                   Amended Proposal for a Third
                         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
      (presented by the Commission pursuant to Article 149 (3)
                          of the EEC Treaty)
 ---pagebreak---                                     - 2 -
                           EXPLANATORY MEMORANDUM
1.  On   23 December    1988 the Commission      presented    to  the Council    a
    proposal for a third 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^).
    This proposal, which Is one of the measures envisaged             In the 1985
    White   Paper on the completion of the          Internal   market, seeks to
    complete   the system created by       the first    two third party motor
                                      2
    Insurance directives of 1972^ ^ and 1983(3).
    These   enabled  green   card  checks    to be abolished      and   began  the
    process of reducing the dI spar it les.between tpe levels and content
    of compulsory third party motor Insurance In the Member States.
2.  The Economic and Social Committee delivered Its opinion on 26 April
    1989W.      The European Parliament has completed        Its first reading,
    delivering    its opinion on 25th October       1989 on the basis of the
    report prepared by its Legal Affairs Committee^ 5 ).           Acting on the
    basis of    the third paragraph of Article 149 of the Treaty, and
    taking account of the two opinions, the Commission hereby presents
    an amended version of its proposal for a Directive.
3.  Two out of the three amendments recommended by Parliament have been
    Incorporated,     in  spirit   if   not   to   the   letter.    Some   of  the
    observations formulated by the Economic and Social Committee have
    also been taken Into account.       A number of additional amendments to
    improve and clarify the preamble are also proposed, in particular
    to bring out more clearly the relevance of             this measure     to the
    internal market programme.
(1) C0M(88)644 final - SYN 165, OJ No. C 16, 20-1-1989, p. 12.
(2) Directive 72/166/EEC; OJ No. L 103, 2-5-1972, p. 2.
(3) Directive 84/5/EEC; OJ No. L 8, 11-1-1984, p. 17.
(4) OJ No. C 159, 26-6-1989.
(5) Doc. PE 134.232 fin.
 ---pagebreak---                                     - 3 -
      The Commission    has not  followed  Parliament's proposed    amendment
      No. 2 dealing with the situation where the victim Is unable to find
      out the name of the insurer of the party liable In an accident.      No
      evidence has been submitted to the Commission by the member States
      to show that this problem is particularly serious or widespread.
Comments on the Individual Amendments Proposed
5.     in Article 1 the reference to Article 1 (1) of Directive 84/5/EEC
       is now considered superfluous and has been deleted.
6.    The proposed amendment to Article 2, second indent, is put forward
       In  response  to  the spirit   of  Amendment    No. 1 in Parliament's
      opinion.    It seeks to ensure that»a motorist using       his vehicle
      outside his home State will never have less than his home State
      insurance cover.
7.    Article 4 Is amended    in accordance with the spirit of Amendment
      No. 3 In Parliament's opinion, namely the desire to find a more
      flexible solution to the problem raised by a dispute between a
      liability Insurer and the guarantee fund.
8.    A new paragraph 2 Is added to Article 5 to allow four Member States
      transitional   periods  under   Article  8c   of   the Treaty  for  the
      application of certain provisions of the directive.
 ---pagebreak---                                            Amended proposal for a third
                                                   COUNCIL DIRECTIVE
               on the approximation of the laws of the member states relating to
           nsurance against civil liability In respect of the use of motor vehicles
                    Initial Proposal                                 Amended Proposal
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
                                                                        Unchanged
 Having regard to the Treaty establishing the European
 Economic Community, and in particular Article 100a
thereof,
Having regard to the proposal from the Commission,
In cooperation with the European Parliament,
Having regard to the opinion of the Economic and
Social Committee,
Whereas, by Directive 72/166/EEC (*), as last amended
by Directive 84/5/EEC (*), the Council adopted
provisions on the approximation of the laws of the
Member Sûtes 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;
Whereas Article 3 of Directive 72/166/EEC required
each Member State to take ail appropriate measures to
ensure that civil liability in respect of the use of vehicles
normally based in its territory is covered by insurance;
whereas the extent of. the liability covered and the terms
and conditions of the insurance cover were to be
determined on the basis of those measures;
Whereas Directive 84/5/EEC reduced considerably the
disparities between the level and content of compulsory
civil liability insurance in the Member States;
Whereas, however, significant disparities still exist in the
coverage of such insurance;
   d)           OJ No. L 1 0 3 , 2 . 5 . 1 9 7 2 , p. 2 .
   (2)           0J No. L 8', 1 1 . 1 . 1 9 8 4 , p. 1 7 .
                                                                                      h
 ---pagebreak---                                                              -   À -
                                                               Whereas motor vehicle accident victims
Whereas the elimination of such disparities, by ensuring       should be guaranteed comparable treatment
that motor vehicle accident victims receive comparable         Irrespective of where In the Community an
treatment irrespective of where in the Community an
accident occurs, will further facilitate the establishment     accident occurs;
and the operation of the internal market;
Whereas, in particular, there are gaps in the   compulsory
 insurance coverage of vehicle passengers        in certain                      Unchanged
 Member Sûtes; whereas, to protect this         particularly
vulnerable category of potential victims,        such gaps
should be filled;
                                                               Wherea*s uncertainty concerning the
Whereas it is necessary to remove uncertainty concerning       application of the first Indent of
the application of the first indent of Article 3 (2) of        Article 3 (2) of Directive 72/166/EEC
Directive 72/166/EEC; whereas all compulsory motor             should be removed; whereas all compulsory
insurance policies must cover the entire territory of the      motor insurance policies must cover the
Community and provide under a single premium at least
the cover required by law in all the Member States;            entire territory of the Community;
                                                               Whereas, moreover, In the Interests of
                                                                the Insured, every Insurance policy
                                                               should provide In each Member State under
                                                                a single prem Imum the cover required by
                                                                law In that State or the cover required
                                                                by law in the Member State In which the
                                                                vehicle is normally based where the
                                                                latter cover Is greater;
Whereas Article I (4) of Directive 84/5/EEC requires                             Unchanged
each Member State to set up or authorize a body to
compensate the victims of accidents caused by uninsured
or unidentified vehicles; whereas, however, the said
provision is without prejudice to the right of the Member
Sûtes to regard compensation by the body as subsidiary
or non-subsidiary;
 ---pagebreak--- Whereas, however, in the case of an accident caused by      Whereas, however, !n the case of an
an uninsured vehicle the victim is required in certain      accident caused by an uninsured vehicle
Member States to esublish that the party responsible is     the victim is required In certain Member
unable or unwilling to pay compensation before he can       States to prove that the party
claim on the body; whereas the body is better placed        responsible is unable or unwilling to pay
than the victim to take action against the party            compensation before he can claim on the
responsible; whereas, therefore, the body should not be
                                                            body; whereas the body Is better placed
able to invoke its subsidiarily in this case but should
compensate the victim in the first insunce;                 than the victim to take action against
                                                            the party responsible; whereas,
                                                            therefore, the body should not be able to
                                                            require, that the victim, in order to be
                                                            compensated, should establish that the
                                                            party responsible is unable or unwilling
                                                            to pay;
                                                            Whereas, In the event of a dispute
Whereas, in the event of a dispute between the body         between the body referred to above and a
referred to above and a civil liability insurer as to which clviI "IiabiIity-insurer as to which of
of them should compensate the victim of an accident,        them should compensate the victim of an
Member States, to avoid delay in the payment of
compensation to the victim, should designate either the
                                                            accident, Member States, to avoid delay
body or the insurer as responsible for paying compen-       In the payment of compensation to the
sation in the first instance pending resolution of the      victim, should ensure that either the
dispute,                                                    body or the insurer is designated as
                                                            responsible for paying compensation in
                                                            the first instance pending resolution of
                                                            the dispute;
                                                            Whereas the previous two Directives on
                                                            civil liability in respect of automobiles
                                                            should, in view of all these
                                                            considerations be supplemented In a
                                                            uniform manner;
                                                            Whereas such an addition, which would
                                                             lead to greater protection for the
                                                             insured and for the victims of accidents,
                                                            would facilitate still further the
                                                            crossing of internal Community frontiers
                                                            and hence the establishment and
                                                            functioning of the internal market;
                                                            whereas a high level of consumer
                                                            protection should accordingly be taken as
                                                            a basis;
                                                                                                       G
 ---pagebreak--- - 4 -
 Whereas, under the terms of Article 3c of
 the Treaty, account should be taken of
 the effort which must be made by certain
 economies which show differences In
 development; whereas certain Member
 States should, therefore, be granted
 transitional arrangements so that certain
 provisions of this Directive may be
 implemented progressively,
 HAS ADOPTED THIS DIRECTIVE:
                                           7
 ---pagebreak---                                                               -  D   -
                            Article 1                                                         Article 1
 Without prejudice to the second subparagraph of Article            Without prejudice to the second subparagraph of Article
  2 (1) of Directive 84/5/EEC, the insurance referred to            2 (1) of Directive 84/5/EEC, the insurance referred to
  in Article 3 (1) of Directive 72/166/EEC and in Article I         in Article 3 (1) of Directive 72/166/EEC
  (1) of Directive 84/5/EEC shall cover liability for                                              .. shall cover liability for
  personal injuries to all passengers, other than the driver,       personal injuries to all passengers, other than the driver,
  arising out of the use of a vehicle.                              arising out of the use of a vehicle.
  For the purposes of this Directive the meaning of the             For the purposes of this Directive the meaning of the
  term 'vehicle' is as defined in Article 1 of Directive            term 'vehicle' is as defined in Article 1 of Directive
  72/166/EEC                                                        72/166/EEC.
                                                                                         Article 2
                           Article 2
Member States shall take the necessary steps to ensure          Member States sffall take the necessary
that all policies of compulsory insurance covering civil        steps to ensure that all policies of
iiability in respect of the use of vehicles:                    compulsory insurance covering civil
— cover, on the basis of a single premium, the entire           liability in respect of the use of
     territory of the Community; and                            vehicles:
— provide, on the basis of the same single premium, in
     addition to the cover required by law in the Member        - cover, on the basis of a single
     State in which the vehicle is normally based, at least       premium, the entire territory of the
     the cover required by law in each of the other
                                                                  Community; and
     Member Stites.
                                                                - provide, on the basis of the same
                                                                  single premium, and in each Member
                                                                  State, the cover required by that
                                                                  State's law or the cover' required by
                                                                   the law in the Member State in which
                                                                   the vehicle Is normally based where
                                                                   that latter cover Is greater.
                            Article 3
 The following sentence shall be added to the first
 subparagraph of Article 1 (4) of Council Directive                                      Unchanged
 84/5/EEC:
      'However, Member Sûtes may not allow the body to
      make the payment of compensation conditional on
      the victim's esubtishing in any way that the person
      responsible is unable or unwilling to pay*.
                                                                                                                                1
 ---pagebreak---                                                             - 6 -
                                                                               Article 4
                            Article 4
                                                              In the event of a dispute between the
 For the case where there is a dispute between the body      body referred to In Article 1(4) of
referred to in Article 1 (4) of Directive 84/5/EEC and
the civil liability insurer as to which must compensate the  Council Directive 84/5/EEC and the civil
victim, Member Sûtes shall designate one of these             liability insurer as to which must
parties as responsible for compensating the victim           compensate the victim, the Member States
without delay in the first insunce. If it is ultimately      shall take the appropriate measures to
decided that the other party should have paid all or part    ensure that one of these parties is
of the compensation it shall reimburse accordingly the       designated as being, required In the
party which has paid.                                        first instance to compensate the victim
                                                             without delay.
                                                              If It is ultimately decided that the
                                                             other party should have paid all or part
                                                             of the compensation, that other party
                                                             sha11 reimburse accordingly the party
                                                             which has paid.
                                                                               Article 5
                            Article 5
Member States shall adopt the provisions necessary to        1. Member States shall take the measures
comply with this Directive not later than 31 December        necessary to comply with this Directive
 1992. They shall forthwith inform the Commission            not later than 31 December 1992. They
thereof.                                                     shall forthwith inform the Commission
                                                             thereof.
                                                             2. By way of exception from paragraph 1:
                                                             -   the Hellenic Republic, the Kingdom of
                                                                 Spain and the Portuguese Republic have
                                                                 until 31 December 1995 to comply with
                                                                 the provisions of Articles 1 and 2,
                                                                 second Indent, of this Directive;
                                                             -    Ireland shall have until 31 December
                                                                 1998 to comply with the provisions of
                                                                 Article 1 as regards the pillion
                                                                 passengers of motorcycles and until
                                                                 31 December 1995 to comply with the
                                                                 provisions of Article 1 as regards
                                                                 other vehicles and to comply with
                                                                 Article 2, second Indent.
                             Article 6
  This Directive is addressed to the Member Sûtes.
                                                                               Unchanged
 ---pagebreak---  ---pagebreak---                                                                     ISSN 0254-1475
                                                              COM (89) 625 final
                                                     DOCUMENTS
EN                                                                         18 07
                                Catalogue number : CB-CO-89-584-EN-C
                                                             ISBN 92-77-55779-6
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