Cross BorderRoad Traffic Accidents

Istanbul

Maarten Tromp,

1st October 2010

What was I invited to do?

To give you an

overview of the

European Directives

(in 45 minutes)

My first thought

That is not a sexy

topic…

But rather a legal forest

I was afraid…

How would I survive?

Without boring you

So I called Rob Elzas

The first one they

asked…

And I called Frits Blees

The Dutch walking

encyclopaedia on

this topic…

Then I read Blees’ Bible

Blees’ Bible

1. To whom to submit a claim?

2. The level of protection

3. The reimbursement of the financial burden

See summary on PEOPIL website

And then I thought

Sure you can!

My route…

• Background

• Requested overview

• Some complications

• Examples

• Management summary

• My wishes

Background

The European wish…

• Single/internal market

• Free movement of persons and goods

• Protection of victims and liable drivers

We do go abroad more often

• for work

• for pleasure

Without delay at the borders…

But still with

Insurance

coverage for

accidents!

How come?

Thanks to insurers

They have set up a

complex international

motor insurance system

How come?

And thanks to the

European Directives

My route…

• Background

• Overview• Some complications• Examples• Management summary• My wishes

Green card system (1953)

• Protection in home country

• For accidents caused by foreign cars

How does it work?

How does it work?

• Council of Bureaux

How does it work?

• Council of Bureaux• Claims adjustment

in home country

How does it work?

• Council of Bureaux• Claims adjustment

in home country• Under responsibility

of the Bureau in home country

1st European Directive (1972)

• Built on green card system

• Compulsory insurance

• Coverage throughout community

• No more green card checks at borders

• No discrimination insured / uninsured

2nd Directive (1984)

• Harmonisation of coverage

• Introduction of minimum amounts

• Limitation on legal or policy exclusions to be used against victims

• Introduction of Guarantee Fund

3rd Directive (1990)

• More harmonisation

• All passengers covered (except for driver)

• No additional premium for coverage abroad

• Minimum coverage:– Amounts in accident country– Amounts in “normally based” country (if higher)

4th Directive (2000)

• Other way around

• Protection abroad

• Direct action against insurer

4th Directive (2000)

• Claim settlement in home country

• Organised in new structure– information centres– claims representatives– compensation bodies

Quote § 34 Directive

“(…) This solution would enable damage suffered by injured parties outside their Member State of residence to be dealt with under procedures which are familiar to them.”

What is familiar?

4th Directive does not affect (§ 35):

• Applicable law

• Jurisdiction

The most important thing is

The appointment of a representative

5th Directive (2005)

• Change of definition “normally based”

• Improvement of formalities and procedures

• Improvement of compulsory coverage– € 1.000.000,-- per victim, or– € 5.000.000,-- per accident, and– € 1.000.000,-- for property damage

What happened in 2009?

• Consolidated and codified version

• Withdrawal directives 1 – 5

• One coherent directive (2009/103/EG)– see www.eur-lex.europa.eu– or PEOPIL website

Future directive?

• Not yet under construction

• But desirable

• Probable topics– settlement costs– position of trailers– applicable law

Territorywww.cobx.org

Territory

Green Card System: 45 jurisdictions

EU Directive: 30 jurisdictions• EU Member States• EFTA countries:

– Iceland, Liechtenstein & Norway

• Equal countries: – Andorra, Croatia & Switzerland

The difference

• Green Card System: only insured cars

• EU: also protection for uninsured cars

• Level of protection depends on Lex Loci Delicti

My route…

• Background• Requested overview

• Some complications

• Examples• Management summary• My wishes

Legal forest

European Law• Insurance coverage• Influence on liability issues? (ECJ 30-6-2005, Candolin)

National Law• Awards and head of damages• Limits allowed for Guarantee Fund

Contract Law• The reimbursement system• www.4directive.org

To whom can one submit a claim?

• Insurer abroad?• Representative?• Guarantee Fund?• The Bureau?• Compensation body?

See flowcharts in reader

Applicable law?

Lex Loci Delicti?

The Hague Treaty

1971

Lex Loci Victimi?

Rome II

2009

Applicable law?

Lex Loci Delicti

Rome II, art 28:

• Respects existingTreaties

Jurisdiction

Accident in home country:

Forum Loci Delicti = Forum Loci Victimi

No Problems:

• Not for victims

• Nor for others (e.g. social security)

Jurisdiction

Accident abroad:

Forum Loci Delicti # Forum Loci Victimi

Position of victim:

Forum Loci Victimi

• Odenbreith / FBTO

• ECJ 13-12-2007, C-463/06

Jurisdiction

Accident abroad:

Forum Loci Delicti # Forum Loci Victimi

Position of others (e.g. social security):

• Depends on definition of “injured party”

in national law

• ECJ 17-9-2009, C-347/08

Practical problem!

My route…

• Background• Requested overview• Some complications

• Examples• Management summary• My wishes

Accident in home country(Blees’ Flowchart 1)

Claim settlement by• Bureau• Representative• Guarantee Fund

EU GCC other

Accidents abroad(Blees’ Flowchart 2 and 3)

Claim settlement by• Claims adjuster• Compensation body• Bureau in accident

country• Guarantee Fund in

accident country• Insurer abroad

EU GCC other

Imagine I went by car

And crashed in several

countries…

Belgium or France

• Drivers from country

• Settlement in Holland – Appointed adjuster, or– Compensation body

• Lex Loci Delicti– No compensation for

lawyers fees!!

Switzerland

• No EU, No GCC

• But equal Country

• Art 8, § 1

• Settlement in Holland – Appointed adjuster, or– Compensation body

• Lex Loci Delicti

Italy

Extra information• Imagine I rented a

car in France, after the accident in that country

• And hit a tree in Italy• Passenger got

injured

Italy

Passenger is Dutch

• Dutch law

Other passengers

• French law– Registered country

• Or Italian law– Lex Loci Delicti

Turkey

No EU, but GCC

Liable driver insured

Claim against

• Insurer in Turkey

Turkey

No EU, but GCC

Liable driver unknown

Claim against

• Guarantee Fund in Turkey

Accident in Austria

EU

Liable driver unknown

Claims against

• Compensation body in Holland

Accident in Germany

Italian liable driver

Possible claims against

• Italian insurer

• German Bureau

• Representative in Holland

Which law?

Lex Loci Delicti?

Germany is not a party to The Hague Treaty

So: Rome II Lex Loci Victimi

Battle of Law

Not every EU

Member is party to

The Hague Treaty

My route…

• Background• Requested overview• Some complications• Examples

• Management summary

• My wishes

More cross border traffic

means

More cross border accidents

Improved protection of victims

But my crashful trip to Istanbul

Turned out to be

a liability lottery

Complex insurance system

• European Law– To whom to present?

• National Law– Level of compensation?

• Contract Law– reimbursement

Thanks to Blees´ Flow charts

You will find the right institution

to present your claim to

Depending the country and the institution…

The level of protection may differ

Depending the country and the institution…

The level of compensation may differ

Victims can go to court in their own jurisdiction

But have to start a battle of law first

The Hague Rome

If Lex Loci Delicti wins

the received compensation may not feel familiar, as intended in § 34 of the European Directive

My route…

• Background• Requested overview• Some complications• Examples• Management summary

• My wishes

Introduction of

Lex Loci Victimi

Wish no. 1

It would only need

That we prevail

Rome II (2009)

over The Hague

Treaty (1971)

All cross border accidents

settled under responsibility

of Bureau in home country

Wish no. 2

It would prevent

Going abroad to

collect compensation

Those settlements would feel familiar!

And it would bethe ultimate example of:

“You have to take the victim

as you find him”

That you agree with me

Wish no. 3

If you do not agree

Give me a boo

But if you do agree

Please applause