Читать книгу Dimensiones y desafíos del seguro de responsabilidad civil - Abel B. Veiga Copo - Страница 30

Where the Union’s legislation itself has established a duty to insure against liability (or to provide an alternative form of financial security such as a bank guarantee), it has often been less vigilant concerning the scope of cover and national differences. There is a broad array of solutions that range from a full-fledged regulation of the content of compulsory liability insurance to other measures which do not enunciate any particulars except for the basic duty to insure. Such superficial regulations are particularly problematic from the viewpoint of compensation claims of third-party victims.

An extreme are the obligations to insure imposed in the field of technical surveillance. A whole series of EU instruments have prescribed such a duty for undertakings which certify the conformity of technical equipment with regulations issued by the Union. The certificates are needed for the EU-wide trade in such services. It goes without saying that errors and negligence occurring in the assessment of conformity can have far-reaching consequences for the health and safety of all persons who make use of, or are exposed to, that equipment. Where the Member State of origin of those goods entrusts the inspection and certification to private entities it must impose a duty to insure against the liability arising from those mistakes. A compulsory liability insurance of this kind has been enacted, inter alia, with regards to conformity assessments of medical devices13 and fertilising products14, cableway installations15 and lifts16, railway material17 as well as motor vehicles and component parts18. It is surprising that in these areas, the EU has laid down the duty to insure for the undertakings offering technical surveillance services, but not for the manufacturers of the products.

In this technical sector the rules on compulsory liability insurance can best be described as “naked”. What they have in common is that the duty is enunciated only where the Member State at issue does not assume liability itself which Member States are, however, unlikely to do, at least not in all 27 Member States. The pertinent provisions often are identical, probably text modules which the responsible service unit of the Commission copies from prior enactments. The specific details of the insurance are entirely unregulated in these measures and, thus, at the level of the Union. They are sometimes even explicitly entrusted to national law19. In any event, it depends on the law of the single Member State whether and to what extent such supplementing national provisions exist. But are all Member States sufficiently interested and do they have the expertise to prescribe such details? Where a Member State does not host manufacturers in the industry at issue, it will often lack qualified personnel and rely on the technical and risk expertise of huge multinational enterprises such as Bureau Veritas or Dekra offering such surveillance services.

More regulatory substance has been dedicated to compulsory liability insurance in some other sectors. Thus, the owners of vessels flying the flag of a Member State or entering a Member State port have to take out insurance for maritime claims subject to the limitation under the 1996 Protocol of the Convention on Limitation of Liability for Maritime Claims20. This instrument prescribes a financial amount as the upper limit of liability for the maritime claim which has to be calculated in accordance with the size and type of the ship; the liability insurance must suffice to meet this liability. But the duty to insure does not specify the various possible limitations of, and exceptions to, the insurer’s obligations mentioned above. And there are no requirements concerning the financial status of the liability insurer which may be seated in a country somewhere in the world where insurance regulations provide much less financial safety than those of the Union. Similar Regulations concerning the extent of the insurer’s liability that do not ensure the financial safety of the insurer can be found for air carriers in respect of loss sustained by passengers, third parties and mail21.

Another example of an insurance duty imposed by the Union and not by the Member States, that is related to the free movement of persons and services concerns insurance intermediaries22. They have to take out liability insurance unless their liability is covered in another way, in particular by the insurer for which the intermediary is empowered to act. The liability insurance is specified with regards to the financial limits; it must cover the whole territory of the European Union23. Even more substantiated is the liability insurance which carriers of passengers are required to take out in sea transport24. The respective rules of the Athens Convention are a product of intergovernmental cooperation and inspired by the long experience of world-wide shipping; the Union is rather a free rider of those efforts.

The most detailed and comprehensive EU regulation of compulsory liability insurance has been established with regards to motor vehicles25. Subsequent to preparatory work sponsored by the Council of Europe26, the Union has adopted, starting 1972, four Directives which were finally codified in 2009 and have given rise to a number of judgments of the Court of Justice27. Beyond the duty to insure and in addition to detailed rules on the enforcement of compensation claims of the victim against the insurer, the 31 Articles of this Directive deal with a variety of issues concerning the scope and extent of insurance cover and possible exceptions from the insurer’s liability.

They require cover to extend to all Member States and to losses suffered on a direct journey between Member States, i.e. in a territory of a third State such as Switzerland or Serbia. They establish minimum amounts to be automatically adjusted from time to time and ensure that both personal injury and damage to property are compensated. They invalidate policy terms that exclude family members of the driver or policyholder from cover, and protect third-party victims against various types of exclusion clauses, e.g. in the case of an accident caused by a driver lacking a driver’s licence. They also provide for compensation when damage results from an accident caused by uninsured cars which includes cars after termination of an insurance contract. In all these cases they grant the third-party victim a direct right of action against the liability insurer which is particularly helpful where the policyholder is insolvent. And they entitle the policyholder to request a statement on the third-party claims brought against the insurer which facilitates negotiations with other liability insurers.

The Directive gives a vivid and concrete impression of the large number of problems connected with compulsory liability insurance. The fact that it took the Union almost forty years to accomplish the various steps towards the present Directive clearly indicates the complex nature of compulsory liability insurance and of its harmonisation in a Union of 27 Member States. Whoever advocates the introduction of such an insurance duty in any special sector should study this Directive which contains many provisions that are of general significance and not confined to the insurance of motor liability.