This is a copy of the paper I delivered to the APIL Accidents Abroad Conference held at the Law Society on 3 November 2016
- · On 8 June 2016 the European Commission has announced its intention to amend the Directive 2009/103 (the Directive) by the end of this year to curb the impact of the Court of Justice’s ruling in Damijan Vnuk v Zavarovalnica Triglav d.d.,  (Case C-162/13). However, it this is likely to be postponed for at least a year.
- · The Commission also plans to undertake a wide-ranging compliance assessment of all the member states as part of a regulatory review of this directive. This could lead to a completely revised 7th Directive in about two years’ time.
- The Court of Justice of the European Union (JJEU) will shortly provide a second preliminary ruling in Farrell v Whitty and others, this time from the Irish Supreme Court (Case C-356/05) on whether Article 1 of the Third Directive (90/232/EEC) on motor insurance, which extended the Article 3 insurance obligation to ‘cover liability for personal injuries to all passengers, other than the driver, arising out of the use of a vehicle’ (now incorporated in the Directive as Article 12) is capable of direct effect against its Article 10 compensating body (the Irish Motor Insurers Bureau). This has important implications for domestic and accidents abroad throughout the EEA.
The Vnuk ruling
The implications of Vnuk
- The civil liability cover provided to third party victims must be good for:
- Any motor vehicle conforming with the article 1 definition
- Any use consistent with the normal function of the vehicle
- Anywhere on land
- The user’s duty to insure and the insurer’s scope of cover are coextensive
- Member states have no discretion to introduce new restrictions, exclusions or limitations.
- Only one exclusion of cover is permitted: this applies to a passenger who voluntarily enters the vehicle knowing that it has been stolen.
The fall-out from Vnuk
- reduce the scope of the Article 3 insurance requirement so that its applies only to accidents caused by motor vehicles when used in traffic. This would require a new Article 1 definition of what is meant by ‘traffic’. This is likely to encompass the use of a vehicle for the transport of persons or goods, whether stationary or in motion.
- Introduce a new restriction that would restrict the insurance requirement to places where the public has access under national law.
2. Plans for a seventh directive
- · that removes the anomalies that arose from the way in which the Directive comprises five preceding directives that sometimes used inconsistent terminology as well as being influenced by the interpretive gloss given by the Court of Justice from (Case C-129/94) Bernaldez in 1996 through to Vnuk in 2014.
- · the incorporation of the Green card scheme for domestic accidents involving foreign EU registered vehicles,
- · possibly also some provision for insurer insolvency – following: (Case C 409/11) Csonka from 2013
- · possibly also better clarification of the insurance requirement and the circumscribed role of the compensating body, post (Case C-442/10) Churchill in 2011 and (Case C 409/11) Csonka in 2013
- · possibly a clearer statement of the free-standing nature of the insurance cover required for third party victims, which seems clear from recital 15 which states) ‘It is in the interest of victims that the effects of certain exclusion clauses be limited to the relationship between the insurer and the person responsible for the accident.’ Whereas, in the UK the limitations attributable to the common law third party rule have only be abrogated to the limited extent provided for in sections 148 and 151 of the Road Traffic Act 1988.