Читать книгу Dimensiones y desafíos del seguro de responsabilidad civil - Abel B. Veiga Copo - Страница 37

Given the fragmentary way of EU legislation such a proposal tends to foster further fragmentation. What can be expected from the Union are separate regimes of compulsory liability insurance for each sector-specific regulation, one for compulsory liability insurance of the producers of medical devices, another one for the undertakings which certify the conformity of such devices with EU regulations, a third one for other “notified bodies” charged with conformity control with regards to cable cars or railway material, etc. Under the current conditions of rule-making in the Union one has to anticipate that not only the substantive results concerning for example prescription periods would differ from sector to sector, but also the drafting of provisions which essentially are meant to have the same content. This is inter alia due to the unfortunate distribution of the responsibility for the drafting of legislation within the Commission. There is no service unit with a cross-cutting competence for horizontal private law aspects; except for consumer law and private international law, private law provisions are frequently viewed as annexes to dossiers pertaining to sector-specific aspects of public law instruments concerning the internal market.

What would be needed is a kind of general part of liability insurance provisions which supplement all EU acts that provide for a compulsory liability insurance in any specific sector without regulating the details. Such general rules could be inspired by the proposals submitted by the PEICL Group mentioned above54. This general part should encompass essential elements such as provisions on the EU-wide scope and the time-span of cover, on the settlement of claims agreed between the policyholder and the victim and its effect on the insurance contract, on direct claims and the assignment of claims against the insurer, on the prescription of claims, to mention just a few. Minimum amounts of cover are also needed, but are sector-specific and may also be country-specific.

Such general rules can only be elaborated by legislation, not by the Court of Justice. As shown by many judgments, the Court of Justice hardly ever argues by way of analogy to corresponding provisions of secondary law existing in other sectors, in this case the Motor Liability Insurance Directive55. Instead, the Court has recourse to general principles such as proportionality, equivalence or effectiveness which are however not capable to generate the kind of detailed provisions needed in this context.