Читать книгу Dimensiones y desafíos del seguro de responsabilidad civil - Abel B. Veiga Copo - Страница 39

The article outlines duties established by the law of the European Union to take out liability insurance. The number of such provisions is increasing but in many cases, EU provisions simply prescribe a “naked” insurance obligation. They leave it –expressly or by implication– to the Member States and their law to determine the scope of cover, minimum amounts, exceptions and direct claims of third party victims against the insurer. As shown by the development of motor liability insurance in the Union, the difficulties of harmonising the content of compulsory liability insurance are noteworthy and they are constantly underestimated by European lawmakers.

The regrettable consequences of the Union’s superficial approach clearly emerge from the breast implants litigation. While the distribution of breast implants in the whole of Europe could avail itself of the achievements of the internal market, in particular of the free movement of goods, EU law could not remedy the situation of a large number of women affected by defects which were due to fraudulent manipulations by the manufacturer who later went insolvent.

As a consequence, this paper suggests to introduce compulsory liability insurance as a supplement to the Products Liability Directive. In addition, general rules on the content of liability insurance should be drafted by EU legislation; they would apply wherever the law of the Union establishes a duty to take out liability insurance without regulating its details. The general rules could use the proposals submitted by the PEICL Group for liability insurance as a source of inspiration60.

(1) European Commission – Directorate-General for Justice, Final Report of the Commission Expert Group on European Insurance Contract Law, 2014, para. 235. The final report can be found on the website of the Max Planck Institute: https://www.mpipriv.de/1102853/EICL-finalreport.pdf.

(2) See Articles 183 et seq. of Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (recast), OJ 2009 L 335/1; the cited provisions refer to non-life insurance, including the various branches of liability insurance.

(3) See the Amendment to the proposal for a Council Directive on the coordination of laws, regulations and administrative provisions relating to insurance contracts, COM(1980)854 final, OJ 1980 C 355/30.

(4) See the 13 Articles No. 14:101-16:101 in Jürgen Basedow/John Birds/Malcom Clerke/Herrman Cousy/Helmut Heiss/Leander Loacker, eds., Principles of European Insurance Contract Law (PEICL), 2nd ed. Köln 2016, p. 286-312.

(5) See Article 23(1) and (2) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ 2006 L 376/36.

(6) See Article 6(3) of Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained, OJ 1998 L 77/36.

(7) See Article 3(1)(c) and Article 7(1) of Regulation (EC) No 1071/2009 of the European Parliament and of the Council of 21 October 2009 establishing common rules concerning the conditions to be complied with to pursue the occupation of road transport operator and repealing Council Directive 96/26/EC, OJ 2009 L 300/51.

(8) See Article 7(2) of Regulation 1071/2009, previous fn.

(9) See Article 4(2)(c) of Regulation (EU) No 1214/2011 of the European Parliament and of the Council of 16 November 2011 on the professional cross-border transport of euro cash by road between euro-area Member States, OJ 2011 L 316/1.

(10) See Articles 3 and 4bis of the Athens Convention which has been ratified by the Union, see Council Decision (2012/22/EU) of 12 December 2011 concerning the accession of the European Union to the Protocol of 2002 to the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974, with the exception of Articles 10 and 11 thereof, OJ 2012 L 8/1; the provisions have been introduced into the internal law of the Union by Article 3 of Regulation (EC) No 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents, OJ 2009 L 131/24.

(11) See below, part 3.

(12) Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability (codified version), OJ 2009 L 263/11.

(13) See Article 11 and Annex XI no. 6 of Council Directive 93/42/EEC of 14 June 1993 concerning medical devices, OJ 1993 L 169/1.

(14) Article 24(9) of Regulation (EU) 2019/1009 of the European Parliament and of the Council of 5 June 2019 laying down rules on the making available on the market of EU fertilising and amending Regulations (EC) No 1069/2009 and (EC) No 1107/2009 and repealing Regulation (EC) No 2003/2003, OJ 2019 L 170/1.

(15) Article 26(9) of Regulation (EU) 2016/424 of the European Parliament and of the Council of 9 March 2016 on cableway installations and repealing Directive 2000/9/EC, OJ 2016 L 81/1.

(16) Article 24(9) of Directive 2014/33/EU of the European Parliament and of the Council of 26 February 2014 on the harmonisation of the laws of the Member States relating to lifts and safety components for lifts (recast), OJ 2014 L 96/251.

(17) See Article 30(4) of Directive (EU) 2016/797 of the European Parliament and of the Council of 11 May 2016 on the interoperability of the railway system within the European Union (recast), OJ 2016 L 138/44.

(18) See Article 68(4) of Regulation (EU) 2018/858 of the European Parliament and of the Council of 13 May 2018 on the approval and market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles, amending Regulations (EC) No 715/2007 and (EC) No 595/2009 and repealing Directive 2007/46/EC, OJ 2018 L 151/1.

(19) See for qualified electronic trust service providers Article 24(2)(c) of Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC, OJ 2014 L 257/73.

(20) Directive 2009/20/EC of the European Parliament and of the Council of 23 April 2009 on the insurance of ship owners for maritime claims, OJ 2009 L 131/128.

(21) Regulation (EC) No 785/2004 of the European Parliament and of the Council of 21 April 2004 on the insurance requirements for air carriers and aircraft operators, OJ 2004 L 138/1; for mail see Article 11 of Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the community (recast), OJ 2008 L 293/3.

(22) For insurance duties imposed by Member States in this context, see above at fn. 5 and 6.

(23) See Article 10(4) of Directive (EU) 2016/97 of the European Parliament and of the Council of 20 January 2016 on insurance distribution (recast), OJ 2016 L 26/19.

(24) See above, fn. 10; the details of the insurance obligations are laid down in Article 4bis (1), (6) and (10) of the Athens Convention.

(25) For more details see Jürgen Basedow, Der Direktanspruch gegen den ausländischen KFZ-Haftpflichtversicherer –eine europäische Rechtsangleichung mit Schönheitsfehlern– in Liber Amicorum in honour of Ioannis K. Rokas, Athens 2017, p. 1-19 at 3 et seq.

(26) European Convention on compulsory insurance against civil liability in respect of motor vehicles, done at Strasbourg on 20 April 1959, European Treaty Series No. 29, available on the website of the Council of Europe: https://www.coe.int/en/web/conventions/full-list.

(27) See above at fn. 12. For a survey of the case law see Leander Loacker, Die Haftpflichtversicherung vor dem EuGH: Überblick über jüngere Entwicklungen, Versicherungsrecht 2020, 1209 – 1218 at 1210 – 1215.

(28) These numbers were given by the members of the expert group originating in those states, see the Final Report, above at fn. 1, para. 257.

(29) For the Directive, see above fn. 13.

(30) See “EuGH weist Klage zu Brustimplantaten ab”, Frankfurter Allgemeine Zeitung 11 June 2020.

(31) See above, fn. 13.

(32) CJEU 16 February 2017, case C-219/15 (Schmitt v. TÜV Rheinland), ECLI:EU: C:2017:128.

(33) See Bundesgerichtshof (BGH) 27 February 2020 – VII ZR 151/18, Versicherungsrecht 2020, 921.

(34) See BGH, previous fn., para. 47 et seq.

(35) CJEU, 11 June 2020, case C-581/18 (RB v. TÜV Rheinland and Allianz IARD), ECLI:EU:C:2002:453.

(36) CJEU, previous fn. para. 31-33.

(37) See the survey by Astrid Epiney in Christian Calliess/Matthias Ruffert, eds., EUV /AEUV. Kommentar, 5th ed. München 2016, Art. 18 AEUV, para. 16 – 19.

(38) CJEU, RB v. Allianz, above at fn. 35, para. 36.

(39) CJEU, RB v. Allianz, above at fn. 35, para. 40.

(40) For the claim brought against TÜV Rheinland in a different breast implants case see above at fn. 31 – 34.

(41) Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, OJ 1985 L 210/29.

(42) See Directive 85/374, previous fn., Recital 1.

(43) CJEU, RB v. Allianz, above at fn. 35, para. 42.

(44) CJEU, RB v. Allianz, above at fn. 35, para. 44.

(45) CJEU, RB v. Allianz, above at fn. 35, para. 46.

(46) CJEU, RB v. Allianz, above at fn. 35, para. 49 and 52 f.

(47) CJEU, RB v. Allianz, above at fn. 35, para. 56.

(48) See for example CJEU 20 September 2001, case C-453/99 (Courage v. Crehan), ECLI:EU:C:2001:465, para. 26 where the Court stated that “the full effectiveness of Article 85 of the Treaty [now Article 101 TFEU]… would be put at risk if it were not open to any individual to claim damages for loss caused to him by a contract or by conduct liable to restrict or distort competition”.

(49) CJEU, RB v. Allianz, above at fn. 35, para. 60 (author’s emphasis).

(50) For the Directive, see above at fn. 25; according to its Article 9 the Directive only covers damage caused by death or personal injuries, or damage to items of property used by the injured person mainly for his own private use or consumption.

(51) Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union Text with EEA relevance, OJ 2014 L 349/1.

(52) See Article 35a of Regulation (EC) No. 1060/2009 of the European Parliament and of the Council of 16 September 2009 on credit rating agencies, OJ 2009 L 302/1 as amended.

(53) See Article 82 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ 2016 L 119/1.

(54) See above at fn. 4.

(55) See above, fn. 12.

(56) On these issues see Gerhard Wagner, Verantwortlichkeit im Zeichen digitaler Techniken, VersR 2020, 717 – 741; on liability insurance see Robert Koch, Herausforderungen für die Haftpflichtversicherung autonomer Systeme und der Sharing Economy, VersR 2020, 741 – 755 at 746 et seq.

(57) European Parliament, Civil Law Rules on Robotics, Resolution of 16 February 2017 with recommendations to the Commission on Civil Law Rules on Robotics, Document P8_TA(2017)0051, para. 57.

(58) Liability for artificial intelligence and other emerging digital technologies, Report from the expert group on liability and new technologies – new technologies formation, European Union 2019, p. 61 et seq.; the document is available on the website of the European Commission: https://ec.europa.eu/newsroom/dae/document.cfm?doc_id=63199.

(59) Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee, report on the safety and liability implications of Artificial Intelligence, the Internet of Things and robotics, COM(2020) 64 final, p. 17 of the English edition, p. 19 of the French edition and p. 20 of the German edition.

(60) See above, fn. 4.