Читать книгу Dimensiones y desafíos del seguro de responsabilidad civil - Abel B. Veiga Copo - Страница 28

Compulsory liability insurance is a mix of public law and private law. The basic obligation to take out liability insurance is imposed by public law, and compliance can be monitored by administrative authorities. But what is the content of such liability insurance imposed by law? This relates to the scope of cover: Which persons are protected, only those domiciled in the Member State of the policyholder or also those in other Member States of the Union, or maybe all potential victims worldwide? Does the time frame of cover relate to the occurrence of insured events, or to the filing of claims? Is cover confined to insured events giving rise to liability in a specific country or under a specific national law? Are there any special requirements concerning the insured event, e.g. minimum amounts of cover or the absence of intent or negligence of the policyholder? Will the third-party victim be entitled to file a direct action against the insurer? And how is the insurer’s obligation to pay affected by an assignment of the policyholder’s claim to the victim or by an acknowledgement of the policyholder’s liability as against the victim? How can the policyholder prove that it complies with the obligation to insure, and are there any requirements concerning the financial capacity of the insurer? In addition, there are of course situations where the insurer’s liability may come to an end, for example in the case of a delayed payment or non-payment of the premium or, after the occurrence of an insured event, through prescription. But do these events directly affect the right of a third-party victim, or will that victim keep its entitlement for some additional time?

These and various other issues may be regulated in a mandatory way by appropriate public-law provisions that specify the duty to take out insurance and regulate all the details. However, many of the issues mentioned above are left to the insurance contract and to insurance contract law. The overall regime of compulsory liability insurance is thus often composed of an obligation under public law and supplementing provisions laid down in the policy and prescribed by private law. There may sometimes even be a kind of grey zone in between, for example where the public law provision only requires an “appropriate” insurance cover.

The effective protection of a third-party victim depends on a comprehensive and consistent regulation of compulsory liability insurance in both public law and private law. It is not sufficient to establish a “naked” obligation to take out insurance covering a person’s liability in a given situation. Where legislation simply establishes such a duty to take out liability insurance, the persons charged with this obligation may seek the cheapest solution. They will consequently opt for any discount offer of the insurer which reduces the scope of cover to the minimum possible, which shortens the time limitation for the insurer’s duty to pay, provides for far-reaching cooperation duties of the policyholder and of the victim and excludes claims for the insurance money where such cooperation duties have not been performed or the insured event has been caused by the slightest negligence on the side of the policyholder, etc. Many manufacturers and traders perceive insurance cover as an invisible performance that is not appreciated by their clients, a kind of luxury which they do not need while the expenses incurred for such cover are a regular and costly burden for their business. It is against this backdrop that compulsory liability insurance in the European Union has to be assessed.