Читать книгу Dimensiones y desafíos del seguro de responsabilidad civil - Abel B. Veiga Copo - Страница 29

EU law provides for compulsory liability insurance in a surprising variety of cases. In general, EU law is not specifically interested in insurance but in the financial security that is ensured by liability insurance or by other means, e.g. a guarantee. Where a duty to provide such a financial security is imposed, this may serve various functions.

In some cases compulsory liability insurance prescribed by the law of a Member State is primarily viewed as a potential restriction of the free movement of goods and services. EU law has to draw the limits to duties imposed by Member States in order to find a compromise between the free movement and the obligation to insure. The Directive on services in the internal market allows national law to require a professional liability insurance from service providers whose services present a direct and particular risk to health, but at the same time prohibits such stipulation where the service provider is covered by an equivalent liability insurance introduced by its Member State of origin5.

As regards the liability of lawyers the Union equally recognizes the right of Member States to impose liability insurance. This was considered as sufficient since liability insurance was compulsory in all Member States, albeit to a different extent. The pertinent Directive, aimed at ensuring the free movement of lawyers and legal services, takes these differences into account. It allows the host Member State to require supplementary protection of lawyers coming from foreign Member States which do not prescribe a fully equivalent insurance6.

In a second function, EU law views liability insurance as a substitute for the capital of an undertaking. In accordance with Regulation 1071/2009 road transport operators are admitted to that trade if they fulfill some conditions and inter alia that of an “appropriate financial standing”; it is defined by a certain amount of capital per vehicle operated by them7. By way of derogation, however, the undertaking may demonstrate its financial standing “by means of a certificate such as a bank guarantee or an insurance, including a professional liability insurance…8” In this case the liability insurance is in no way related to any third-party liability of the road transport operator; it is only an indicator of financial stability. A similar function can be ascribed to the requirement of a “valid civil liability insurance” which is a condition for the grant of a licence for the cross-border transport of Euro cash by road9.

A third function of compulsory liability insurance is more familiar to insurance lawyers: it is the economic support of liability claims. EU law imposes such insurance duties in multiple contexts. In some cases, the liability is regulated by national law, in others by EU law itself. There is no consistency: there are situations where EU law governs liability and requires the liable person to cover this liability by an appropriate insurance – for example in the carriage of passengers by sea10; in other cases, the liability is equally controlled by EU law but not supported by a liability insurance imposed by EU law – products liability11; and there are cases where the Union requires a liability insurance although the liability that should be covered is subject to national law – motor liability12. The state of the law could not be more paradoxical.