Insurance against civil liability in respect of the use of motor vehicles (‘motor insurance’) is of special importance for European citizens, whether they are policyholders or could become injured parties as a result of an accident. It is also a major concern for insurance undertakings, as it constitutes an important segment of the ‘non-life’ insurance market in the Union. Motor insurance also has a significant impact on the free movement of persons, goods and vehicles, and hence on the internal market. Reinforcing and consolidating the internal market for motor insurance should therefore be a key objective of Union action in the field of financial services.
(2)
In 2017, the Commission carried out an evaluation of the functioning of Directive 2009/103/EC of the European Parliament and of the Council (3), including its efficiency, effectiveness and coherence with other Union policies. The conclusion of the evaluation was that Directive 2009/103/EC functions well on the whole, and does not need amendment in most aspects. However, four areas were identified in respect of which targeted amendments would be appropriate: compensation of parties injured as a result of accidents where the insurance undertaking concerned is insolvent, minimum obligatory amounts of insurance cover, insurance checks of vehicles by Member States, and the use of policyholders’ claims-history statements by a new insurance undertaking. In addition to those four areas, the following, namely dispatched vehicles, accidents involving a trailer towed by a vehicle, motor insurance independent price comparison tools, and information centres and information to injured parties, have also been identified as areas in respect of which targeted amendments would be appropriate. Furthermore, the clarity of Directive 2009/103/EC should be enhanced by replacing the term ‘victim’, which is used in that Directive as a synonym of ‘injured party’, by the term ‘injured party’ or ‘party injured’, as appropriate, through appropriate amendments. Those amendments have the exclusive objective of harmonising the terminology used in that Directive and do not constitute a change of substance.
(3)
Since the entry into force of Directive 2009/103/EC, many new types of motor-powered vehicles have come onto the market. Some of them are powered by a purely electrical motor, some of them by auxiliary equipment. Such vehicles should be taken into account in defining the meaning of ‘vehicle’. That definition should be based on the general characteristics of such vehicles, in particular their maximum design speeds and net weights, and should provide that only vehicles propelled exclusively by mechanical power are covered. The definition should apply independently of the number of wheels that the vehicle has. Wheelchairs intended for use by persons with physical disabilities should not be included in the definition.
(4)
Light electric vehicles that do not fall within the definition of ‘vehicle’ should be excluded from the scope of Directive 2009/103/EC. However, nothing in that Directive should hinder Member States from requiring, under their national law, motor insurance, subject to conditions to be set by them, in respect of any motor equipment used on land that does not fall within that Directive’s definition of ‘vehicle’, and for which consequently that Directive does not require such insurance. Nor should that Directive hinder Member States from providing, in their national laws, for the victims of accidents caused by any other motor equipment to have access to the Member State’s compensation body as determined in Chapter 4. Member States should also be able to decide that, where residents of their territory are parties injured in an accident caused by such other motor equipment in another Member State in which motor insurance is not required for that motor equipment, those residents are to have access to the compensation body as determined in Chapter 4 in the Member State where they are residing. Compensation bodies of Member States should have the possibility of entering into a mutual agreement about the ways in which they will cooperate in that kind of situation.
(5)
In recent decisions of the Court of Justice of the European Union, namely in its judgments in the cases Vnuk (4), Rodrigues de Andrade (5) and Torreiro (6), the Court of Justice clarified the meaning of the concept ‘use of vehicles’. In particular, the Court of Justice clarified that motor vehicles are intended normally to serve as a means of transport, irrespective of such vehicles’ characteristics, and that the use of such vehicles covers any use of a vehicle consistent with its normal function as a means of transport, irrespective of the terrain on which the motor vehicle is used and of whether it is stationary or in motion. Directive 2009/103/EC does not apply if, at the time of the accident, the normal function of such a vehicle is ‘use other than as a means of transport’. This could be the case if the vehicle is not being used within the meaning of Article 3, first paragraph, of that Directive, as its normal function is, for instance, ‘use as an industrial or agricultural power source’. In the interest of legal certainty, it is appropriate to reflect that case-law in Directive 2009/103/EC by introducing a definition of ‘use of a vehicle’.
(6)
Some motor vehicles are smaller and are therefore less likely to cause significant personal injury or damage to property than others. It would be disproportionate and not future proof to include them in the scope of Directive 2009/103/EC. Including them would also undermine the uptake of newer vehicles, such as electric bicycles that are not exclusively propelled by mechanical power, and discourage innovation. Furthermore, there is insufficient evidence that such smaller vehicles could cause accidents resulting in injured parties at the same scale as other vehicles, such as cars or trucks. In line with the principles of subsidiarity and proportionality, requirements at Union level should, therefore, cover only those vehicles that are defined as such in Directive 2009/103/EC.
(7)
As a matter of principle, motor insurance should cover accidents in all areas of the Member States. However, certain Member States have provisions governing vehicles used exclusively in specific areas with limited access. It should be possible for those Member States to make limited derogations from Article 3 of Directive 2009/103/EC in respect of restricted areas which unauthorised persons should not enter, such as location-specific areas and areas with equipment at ports and airports. A Member State that decides to make such derogations should also take appropriate measures to ensure that compensation is paid in respect of any loss or injury caused by such a vehicle.
(8)
It should also be possible for a Member State not to require compulsory motor insurance for vehicles that have not been admitted for use on public roads in accordance with its national law. Such Member State should nevertheless take appropriate measures to ensure that compensation is paid in respect of any loss or injury caused by such vehicles, except where the Member State also decides to derogate from Article 10 of Directive 2009/103/EC in respect of compensation for damage caused by such vehicles in areas not accessible to the public due to a legal or physical restriction on access to such areas, as defined by its national laws. Such derogation from Article 10 should apply to vehicles in respect of which a Member State has decided to derogate from the insurance obligation because those vehicles are not admitted for use on public roads in accordance with its national law, even if the insurance obligation for those vehicles could also benefit from a different derogation, provided for in Article 5 of Directive 2009/103/EC.
(9)
In certain Member States there are provisions regarding the use of vehicles as a means of deliberately causing personal injury or damage to property. Where applicable, in the most serious offences the Member States should be allowed to continue their legal practice of excluding such damage from compulsory motor insurance or of reclaiming the amount of insurance compensation that is paid out to the injured parties from the persons responsible for that injury or damage. However, in order not to reduce the protection granted by Directive 2009/103/EC, such legal practices should be allowed only if a Member State ensures that in such cases the injured parties are compensated for such damage in a manner that is as close as possible to how they would be compensated under Directive 2009/103/EC. Unless the Member State has provided for such an alternative compensation mechanism or guarantee, ensuring compensation of injured parties for such damage in a manner that is as close as possible to how they would be compensated under Directive 2009/103/EC, such damage should be covered in accordance with that Directive.
(10)
Member States should not apply Directive 2009/103/EC to the use of vehicles in motorsport events and activities, including races and competitions, as well as training, testing and demonstrations, including those of speed, reliability or skills, allowed in accordance with their national law. Such exempted activities should take place in a restricted and demarcated area in such a way as to ensure that ordinary traffic, members of the public and any parties unrelated to the activity are unable actually or potentially to share the route that is being driven. Such activities usually include those on designated motorsport tracks or routes and the areas of immediate vicinity, such as security areas, pit stop areas and garages, where the risk of an accident is much higher in comparison to normal roads and which unauthorised persons should not enter.
(11)
Such an exemption on motorsport events and activities should only apply where the Member State ensures that the organiser of the event or activity, or any other party, has taken out an alternative insurance or guarantee policy covering the damage to any third party, including spectators and other bystanders, but not necessarily the damage to participating drivers and their vehicles. Unless the organisers or other parties have, as a condition of that exemption, taken out an alternative insurance or guarantee policy, the damage, with the possible exception of damage to the participating drivers and their vehicles, should be covered in accordance with Directive 2009/103/EC.
(12)
In order not to reduce the protection granted by Directive 2009/103/EC, Member States should ensure that, in the motorsport events and activities allowed in accordance with their national law and eligible for that exemption, the injured parties are compensated for such damage in a manner that is as close as possible to how they would be compensated under Directive 2009/103/EC.
(13)
While being manufactured and transported, vehicles lack transport functions and are not considered as being used in the sense of Article 3, first paragraph, of Directive 2009/103/EC. However, if a Member State chooses not to apply the requirement to have motor insurance in respect of such vehicles pursuant to Article 28(1) of Directive 2009/103/EC, there should be business liability insurance to cover the damage which those vehicles might cause.
(14)
Currently, the national laws of many Member States link the insurance obligation to the use of a vehicle within the meaning of Article 3, first paragraph, of Directive 2009/103/EC. In such Member States, the use of a vehicle is only allowed when the vehicle is registered. The laws of those Member States stipulate that the vehicle is to be covered by motor insurance during the vehicle’s active registration and use within the meaning of Article 3, first paragraph, of Directive 2009/103/EC. Consequently, those Member States do not require insurance cover for the use of vehicles which are permanently or temporarily deregistered because, for example, they are in a museum, are undergoing restoration or have not been used for an extended period of time for another reason, such as seasonal use. Such Member States need to take appropriate measures to ensure that compensation in line with the compensation available under Directive 2009/103/EC is paid in respect of any loss or injury caused in their territory and in the territory of other Member States by vehicles as defined in that Directive which are used within the meaning of Article 3, first paragraph, thereof.
(15)
Currently, some Member States, in which the obligation to insure against civil liability in respect of the use of a motor vehicle is not linked to registration of a vehicle, choose not to require compulsory motor insurance for vehicles that have been formally withdrawn from use in accordance with their national law. Examples of such formal withdrawal from use include the sending of a notification to the competent authority or other designated parties performing the function of the competent authority or the taking of other verifiable physical measures. Those Member States need to take appropriate measures to ensure that compensation in line with the compensation available under Directive 2009/103/EC is paid in respect of any loss or injury caused in their territory and in the territory of other Member States by such vehicles.
(16)
Currently, Member States are to refrain from performing checks of insurance on vehicles normally based in the territory of another Member State and in respect of vehicles normally based in the territory of a third country entering their territory from the territory of another Member State. New technological developments, such as the technology allowing automatic number plate recognition, enable the insurance of vehicles to be checked without stopping them and thus without interfering with the free movement of persons. It is therefore appropriate to allow those checks of insurance on vehicles, but only if they are non-discriminatory, necessary and proportionate, form part of a general system of checks on the national territory which are also carried out in respect of vehicles normally based in the territory of the Member State performing the checks, and do not require the stopping of the vehicle.
(17)
Member States that opt to set up a system that processes personal data which may subsequently be shared with other Member States, such as data from number plate recognition technology, need to legislate to allow for the processing of personal data for the purposes of combatting uninsured driving, whilst establishing suitable measures to safeguard data subjects’ rights and freedoms and legitimate interests. The provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council (7) apply to the processing of personal data for the purpose of combatting uninsured driving. The Member States’ legislation should in particular specify the precise purpose, refer to the relevant legal basis, comply with the relevant security requirements and respect the principles of necessity, proportionality, and ‘purpose limitation’, and should set a proportionate data retention period. In addition, the principles of ‘personal data protection by design’ and ‘personal data protection by default’ should be applied to all data processing systems developed and used within the framework of the Member States’ legislation.
(18)
In line with those principles, Member States should not retain the personal data processed exclusively for the purpose of handling an insurance check longer than the period needed to verify whether a vehicle holds valid insurance coverage. When a vehicle is found to be covered, all data related to that verification should be erased. When a verification system is unable to determine whether a vehicle is insured, that data should be held only for a limited period, not exceeding the number of days necessary to determine whether the insurance coverage exists. For those vehicles which have been found not to be covered by a valid insurance policy, it is reasonable to require that such data are retained until any administrative or judicial processes are completed and the vehicle is covered by a valid insurance policy.
(19)
Directive 2009/103/EC currently lays down different reference dates for the periodic recalculation of the minimum amounts of cover in different Member States, which leads to different minimum amounts of cover depending on the Member State. To ensure equal minimum protection of injured parties across the Union, those minimum amounts should be harmonised, and a uniform review clause that uses as a benchmark the harmonised index of consumer prices as published by Eurostat, as well as procedural rules governing such a review and setting out a uniform timeframe, should be introduced.
(20)
Effective and efficient protection of parties injured as a result of traffic accidents requires that those injured parties are entitled to claim compensation in their Member States of residence and to receive a response within a reasonable time. It also requires, where their claims are justified, that those injured parties are always paid the amounts due for their personal injuries or for any damage to their property, irrespective of whether the insurance undertaking of the party liable is solvent. Member States should therefore set up or authorise a body to provide initial compensation for injured parties residing within their territory, and which has the right to reclaim that compensation from the body set up or authorised for the same purpose in the home Member State of the insolvent insurance undertaking which issued the policy of the vehicle of the liable party. Where a Member State has an existing compensation arrangement, the Member State should be able to allow it to continue to operate.
(21)
An insurance undertaking may become insolvent in various ways, for example, as a result of being declared bankrupt, of defaulting on the performance of its obligations once it has renounced its authorisation in its home Member State or of having been the subject of a revocation measure or a decision prohibiting its activity. When an order is made or a decision is taken to commence the bankruptcy or winding-up proceedings, that order or decision should be made public. The body set up or authorised to compensate injured parties in the case of insolvency of an insurance undertaking in the home Member State of the insurance undertaking should inform such bodies in all other Member States about that order or decision.
(22)
Member States should ensure that the body set up or authorised to compensate injured parties in the case of insolvency of an insurance undertaking in the Member State in the territory of which the injured party resides, is competent at all stages in the proceedings to request information, to inform and be informed by, and to cooperate with the other relevant bodies, authorities and stakeholders in the Union. Such information should be sufficient for the recipient to gain at least a general understanding of the situation. Such information is important to ensure that the body which compensates an injured party is able, before the payment of compensation is made, to ascertain by itself or together with all the relevant parties pursuant to the national legislation, whether the insurance undertaking has already compensated the claimant in respect of his or her claim. The claim presented to that body may even be transferred to the insurance undertaking for further scrutiny or for a decision, where national procedural law so requires. Member States should ensure that the body requests and receives more detailed information about specific claims.
(23)
The system of reimbursement should be without prejudice to the applicable law regarding coverage levels of injured parties. The same principles should apply to claims regardless of whether the insurance undertaking is solvent or insolvent. The body of the home Member State of the insurance undertaking which issued the policy of the liable party should make the payment to the body of the Member State in the territory of which the injured party resides within a reasonable time after the body of the home Member State of the insurance undertaking receives a claim for recompensation regarding a payment that the body of the Member State of residence of the injured party has made to the injured party.
(24)
Depending on the different stages of claims handling, on payments made to the injured parties and on reimbursement processes in different bodies, there may be outstanding liabilities between bodies set up or authorised to compensate injured parties in the case of insolvency of an insurance undertaking. The right of subrogation should pass from the body that has paid out compensation first to the body of the other Member State as the reimbursement of bodies progresses. Therefore, the body, to the extent that it has provided compensation for the loss or injury suffered and has not yet been reimbursed, should be subrogated to the rights of the injured party against the person who caused the accident, or his or her insurance undertaking. However, that body should not be subrogated to the rights of the injured party against the policyholder or other insured person who caused the accident insofar as the liability of the policyholder or of the insured person would be covered by the insolvent insurance undertaking in accordance with the applicable national law. Each Member State should be obliged to acknowledge this subrogation as provided for by any other Member State.
(25)
To ensure efficient and effective protection of injured parties in the case of insolvency of an insurance undertaking, it is necessary for the Member States to make appropriate arrangements to ensure that the funds needed to compensate injured parties are available when compensation payments are due. In accordance with the principle of subsidiarity, those arrangements should be decided by home Member States at national level. They should, however, be in compliance with Union law and in particular with such principles as lex specialis and lex posterior. In order to prevent placing an unjustified and disproportionate burden on insurers, if a Member State requires financial contributions from insurance undertakings, those contributions should be collected only from insurance undertakings authorised by that Member State. This should be without prejudice to the funding of any other functions that could be attributed to the body set up or authorised to compensate injured parties in the case of insolvency of an insurance undertaking.
(26)
In order to ensure that the requirements provided for in this Directive concerning the compensation of injured parties in the case of the insolvency of an insurance undertaking are implemented effectively, the bodies entrusted with this task should strive to conclude an agreement concerning their functions and obligations and the procedures for reimbursement. If no such agreement has been reached within 24 months of the date of entry into force of this Directive, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union (TFEU) should be delegated to the Commission in respect of specifying the procedural tasks and obligations of such bodies with regard to reimbursement.
(27)
In the case of the insolvency of an insurance undertaking, injured parties should be entitled to claim compensation from a body in their Member State of residence, including when they are injured as a result of accidents occurring in a Member State other than their Member State of residence. Member States should be able to attribute the function of compensating such injured parties to a new body or to a body that already exists, including to the compensation body established or approved under Article 24 of Directive 2009/103/EC. Member States should also be able to attribute the tasks of compensating, in the case of insolvency of the insurance undertaking, parties injured as a result of accidents in their Member State of residence and those injured as a result of accidents in Member States other than their Member State of residence to a single body. In the case of parties injured in Member States other than their Member State of residence, it is also important to ensure the exchange of information and the cooperation with the compensation bodies established or approved under Article 24 of Directive 2009/103/EC in all Member States and with claims representatives.
(28)
Member States are able to set up or authorise more than one compensation body under Directive 2009/103/EC, which could potentially make it harder for injured parties to identify the body to which they are to submit their claims. Member States that set up or authorise more than one compensation body should therefore ensure that injured parties have access to essential information on the possible ways to apply for compensation in a manner that allows them to easily understand to which body they should apply.
(29)
In the case of a dispatched vehicle, it should be possible for the person responsible for third party liability cover to choose whether to take up an insurance policy in the Member State in which the vehicle is registered or, for a period of 30 days from the date of acceptance of delivery by the purchaser, in the Member State of destination, even if the vehicle has not formally been registered in the Member State of destination. The information centre of the Member State in which the vehicle is registered and, where different, of the Member State of destination, as well as that of any other relevant Member State, such as the Member State in the territory of which an accident occurred, or in which an injured party is resident, should cooperate with each other to ensure that the necessary information on the dispatched vehicle that they have in accordance with Article 23 of Directive 2009/103/EC is available.
(30)
In the case of accidents involving trailers in respect of which a third party liability insurance separate from the one of the towing vehicle was issued, the injured party should be able to bring the claim against the insurer of the trailer where national law so provides. Upon request, the injured party should be able to obtain from the insurer of the trailer information about the identity of the insurer of the towing vehicle or where the insurer of the trailer is unable to identify the insurer of the towing vehicle, despite having made reasonable efforts to do so, information about the compensation mechanism provided for in Article 10 of Directive 2009/103/EC.
(31)
In order to facilitate the recognition of the claims history when concluding a new insurance policy, it should be possible to easily authenticate the previous claims histories of policyholders who seek to conclude new insurance contracts with insurance undertakings. In order to simplify the verification and authentication of claims-history statements, it is important for their content and format to be the same across all Member States. In addition, insurance undertakings that take into account claims-history statements to determine motor insurance premiums should not discriminate on the basis of nationality or solely on the basis of the previous Member State of residence of the policyholder. Moreover, insurance undertakings should treat a claims-history statement from another Member State as equal to a domestic claims-history statement and apply to a client from another Member State any discounts that would be available to an otherwise identical domestic client, including those discounts that are required by the Member State’s national legislation, such as ‘bonus-malus’ discounts. Member States should remain free to adopt national legislation concerning ‘bonus-malus’ systems, since such systems are national in nature and without any cross-border element, and therefore, under the principle of subsidiarity, decision-making concerning them should remain with the Member States. To enable Member States to verify whether and how insurance undertakings treat claims-history statements, insurance undertakings should publish a general overview of their policies in respect of their use of claims history when calculating premiums. Without prejudice to Directive (EU) 2016/943 of the European Parliament and of the Council (8), insurance undertakings are not required to publish commercially sensitive information, such as details of tariff rules.
(32)
In order to ensure uniform conditions for the implementation of Directive 2009/103/EC, implementing powers should be conferred on the Commission regarding the form and content of the claims-history statement. Those implementing powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (9).
(33)
Member States should be able to choose to certify tools which enable consumers to compare prices, tariffs and coverage between providers of motor insurance which comply with the conditions set out in Directive 2009/103/EC. If duly certified, such tools could be denominated as ‘motor insurance independent price comparison tools’. Member States should also be able to establish public price comparison tools, operated by a public authority.
(34)
To ensure that claims are handled smoothly when an accident report is required under national law which ensures the right of the injured party to obtain a copy of the accident report from competent authorities, it is important that the injured party has access to it in a timely manner.
(35)
To ensure that the minimum amounts of cover of motor insurance are not eroded over time, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of the adaptation of those minimum amounts to reflect the evolving economic reality.
(36)
When adopting delegated acts under empowerments in this Directive, it is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (10). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.
(37)
As part of the evaluation of the functioning of Directive 2009/103/EC, the Commission should monitor the application of that Directive, taking into account the number of injured parties, the amount of outstanding claims due to delays in payments following cross-border insolvency cases, the level of minimum amounts of cover in Member States, the amount of claims due to uninsured driving relating to cross-border traffic and the number of complaints regarding claims-history statements.
(38)
In addition, the Commission should prepare a report evaluating the functioning of, cooperation between and funding of the compensation bodies set up or authorised to compensate injured parties in the case of the insolvency of an insurance undertaking. If appropriate, the report should be accompanied by a legislative proposal.
(39)
In order to ensure that Directive 2009/103/EC continues to serve its purpose, which is to protect potential injured parties from accidents involving motor vehicles, the Commission should also monitor and review that Directive in light of technological developments, including the increased use of autonomous and semi-autonomous vehicles. It should also analyse the use by insurance undertakings of systems in which premiums are influenced by the policyholders’ claims-history statements. Moreover, the Commission should assess the effectiveness of exchange of information systems used for the purpose of cross-border checks on insurance.
(40)
Since the objectives of this Directive, in particular to ensure an equal minimum protection of parties injured as a result of traffic accidents across the Union, to ensure their protection in case of insolvency of insurance undertakings and to ensure equal treatment of claims-history statements by insurers for potential policy holders crossing internal Union borders, cannot be sufficiently achieved by the Member States but can rather, by reason of their effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.
(41)
In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents (11), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.
(42)
Directive 2009/103/EC should therefore be amended accordingly,
