Dr Nicholas Bevan

Dr Nicholas Bevan

Monday, 15 September 2014


The Prime Minister, who campaigned unsuccessfully against the election of Jean-Claude Juncker as European Commission President has nominated Jonathan Hill, Baron Hill of Oareford as the British European Commissioner with responsibility for the Financial Stability, Financial Services and Capital Markets Union.  
Baron Hill nominated to European Commission

If Baron Hill’s appointment is confirmed, his portfolio would extend to the European Commission’s current investigation into the UK’s failure to properly implement the European Directives on motor insurance (Council Directives 72/166/EC; 84/5/EC; 90/232/EEC; 2000/26/EC; 2005/14/EC and 2009/103/EC).  Given that the European Commission has an unfettered discretion on whether to bring infringement proceedings and given the hostile political climate and the increasingly Euro-sceptic stance of the UK administration, it is possible that the European Commission may decide against pursuing an infringement action against the United Kingdom, notwithstanding the numerous defects in our national law transposition of these Directives.

For those of us arguing for wide-spread reform in this area, Baron Hill’s appointment might be viewed as a serious setback.  However it is conceivable that the Jonathan Hill might, on being properly briefed, realise that the UK national law provision is so obviously flawed in a way that unjustly confers windfalls to the motor insurance industry at the expense of the innocent victims whom the scheme is supposed to protect, that he will encourage a wide-scale review within the DfT of its defective implementation of these Directives.  

He would be wise to do so, as EU law provides other remedies that are capable of delivering the same outcome. 

There is a growing awareness amongst the road traffic accident practitioner fraternity that where a UK national law provision fails to provide the minimum standard of compensatory protection required under EU law, then it is possible to obtain redress through the courts. 

The doctrine of direct effect may now extend to injured victims wrongly refused full compensation by the Motor Insurers Bureau on the basis that were the MIB's true status examined by a properly informed court it would be held to be an emanation of state. 

Furthermore an aggrieved party can also rely on the indirect effect of a directive.  See the following exceprt from the Court of Justice in Bernhard Pfeiffer and others v Deutsches Rotes Kreuz, and others CJEU 2004 Case C-297/01 that some view as having blurred the boundary between direct and indirect effect:

111  It is the responsibility of the national courts in particular to provide the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective.

112  That is a fortiori the case when the national court is seised of a dispute concerning the application of domestic provisions which, as here, have been specifically enacted for the purpose of transposing a directive intended to confer rights on individuals. The national court must, in the light of the third paragraph of Article 249 EC[LINK to excerpt] , presume that the Member State, following its exercise of the discretion afforded it under that provision, had the intention of fulfilling entirely the obligations arising from the directive concerned (see Case C 334/92 Wagner Miret [1993] ECR I-6911, paragraph 20).

113  Thus, when it applies domestic law, and in particular legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, the national court is bound to interpret national law, so far as possible, in the light of the wording and the purpose of the directive concerned in order to achieve the result sought by the directive and consequently comply with the third paragraph of Article 249 EC (see to that effect, inter alia, the judgments cited above in Von Colson and Kamann, paragraph 26; Marleasing, paragraph 8, and Faccini Dori, paragraph 26; see also Case C 63/97 BMW [1999] ECR I 905, paragraph 22; Joined Cases C 240/98 to C 244/98 OcĂ©ano Grupo Editorial and Salvat Editores [2000] ECR I-4941, paragraph 30; and Case C 408/01 Adidas-Salomon and Adidas Benelux [2003] ECR I-0000, paragraph 21).

As Mr Justice Jay’s ruling in Delaney v Secretary of State for Transport 2014 makes clear, the language of the directives is clear, unambiguous and it leaves the UK with very little discretion as to how its obligations are transposed into UK law, so that a failure to fully implement them is likely to be deemed sufficiently serious to warrant a Francovich award against the UK.

The DfT were fully briefed in February 2013 on the numerous infractions of EU law in its statutory and extra-statutory provision.  We were promised detailed proposals initially in July, then in the Autumn of last year but nothing has been heard from them since.

So it is to be hoped that if Baron Hill is appointed to this post, he will see the merit in conceding with grace what can (and will eventually) be secured independently of the Executive through the courts by a consistent interpretation of our national law.  What insurers and claimant representatives require is a clearly articulated policy that complies with EU minimum standards of compensatory protection, ideally in a codified form that is consistent with rule of law and legal certainty principles.

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