Читать книгу Dimensiones y desafíos del seguro de responsabilidad civil - Abel B. Veiga Copo - Страница 36

Against this backdrop two conclusions can be drawn from the breast implants judgment. The first concerns the duty to insure as such: where the Union regulates liability by its own law in situations that satisfy the four conditions mentioned above, it should impose such a duty to insure on the persons who are potentially liable. This applies to the liability for actions that primarily affect consumers such as products liability50. The far-reaching implementation of the free movement of goods has extended the risk of loss resulting from the defects of those goods to the whole internal market. Where the producers are small or medium enterprises they are frequently unable to compensate the victims for the resulting damage which in the case of mass defects may be much higher than the price paid for the goods. In an open internal market the manufacturers cannot preclude the export of their goods to other Member States and therefore must take into account compensation claims from the whole Union. Many of them will voluntarily take out insurance to avoid their own insolvency in similar situations, but there are also many others who try to reduce their costs as much as possible by accepting an insurer’s discount offer.

These considerations do not apply to other provisions of EU law which establish liability in the commercial sector, i.e. in B2B relations. Where an undertaking is for example required to compensate loss caused by its anti-competitive action breaching competition law, it is likewise liable under EU law51; there is no reason to impose an insurance duty in this case, however, since the loss absorption capacity of the undertakings involved is usually sufficient to satisfy the claims. The same is true for the liability of credit rating agencies52 and, given the financial power of big IT firms, also for the liability of data processors and controllers in accordance with the General Data Protection Regulation53. In all these cases, liability makes sense as such, without any need for compulsory liability insurance.

The second conclusion to be drawn from the breast implants judgment relates to the scope of such insurance and the exceptions there-from. As pointed out above, the Union has often left these matters to national law in the past. However, the economic incentives provided to the businesses subject to compulsory liability insurance are such that some of them choose the cheapest option offered by any insurer in the market. The Member States, on their part, are only interested in a comprehensive protection of their own population. When it comes to the export of goods and services to other Member States, they will rather try to keep the costs for their own companies at a low level. They will not insist on an EU-wide cover of the liability insurance unless they are under a corresponding duty imposed by EU law. The incentives are similar with regards to other terms of the liability insurance contract. Even where the rules are the same for claims brought by domestic and foreign victims, the effects will sometimes differ; for example, a short prescription period may be viable in a domestic setting but cause practical difficulties for plaintiffs in cross-border litigation where documents must be translated into the local language before they can be submitted to the court. There is a strong case for supplementing EU provisions imposing a duty to insure by other rules which set forth some details of the respective insurance contract.