Moving around without controls among the different European Union Member States has become a well-accepted and normalised fact for all of us. Only a few can deny that the fact of not having to endure long traffic jams and uncomfortable waits at border areas is one of the major achievements of the project started by a tiny group of Central European countries with the signing of the Schengen Agreement in 1985. Its entry into force in 1995, supported then by most of the countries of the newly-created European Union, entailed the lifting of internal border controls and the transfer of them to the external borders. Since then, the freedom of movement of goods and persons has been a constant challenge for European lawmakers in the pursuit of the goal of removing barriers that still exist between Member States.
Thus, the Council adopted in 1972 the first motor vehicle Directive on civil liability motor insurance. It has, according to the Council, “the double aim of safeguarding the interests of victims of accidents (with or without cross-border dimension) and facilitating the free movement of vehicles between Member States.” Since this first Directive, five more Directives have reinforced the first and lead to the most recent approved Directive: 2009/103/EC.
With the same aim as previous Directives, but with the needed regulatory modernization and the update of jurisprudence emanating from the Court of Justice of the European Union (CJEU) during these years, the draft Directive approved in May of this year in order to fight the circulation of vehicles without compulsory insurance is forged.
The concerned Directive was the subject of a workshop organised by INESE on 16th October in Madrid, to which Belzuz Abogados’ Insurance Law Department attended and where the novelties of the entry into force of the Directive, together with the consequences for the insurance industry and an interesting analysis of European case law structured by the Draft were addressed.
One of the items with the most interest, and that will be subject of amendments by the Directive, was the one related to the paradox that arises from the fact that the European Union is going to foster the tightening up of verification measures for uninsured cars in borders.
The successive European Directives contain the obligation that, in the event of an accident, the guarantee fund of the Member State where the victim lives (in Spain, Consorcio de Compensación de Seguros) shall compensate the victim for damages to property or personal injuries caused by an unidentified or uninsured vehicle.
This trend, on the rise since the “vanishing” of internal borders, is estimated to cause annually 870-million-euro losses in the guarantee funds (to which we all contribute through a tax that we pay when paying any insurance policy).
With the aim of reducing these figures, the European authorities are willing to forbid the movement of vehicles from one country to another if they don’t have the compulsory insurance. At this point, two questions arise: how will the EU coordinate the checks to monitor that there are not uninsured vehicles within the free movement among Member States? Will we have to endure again the long-forgotten border controls?
The Union spirit will remain that of absolute and careful respect to the principles of the Schengen Agreement. This way, the Directive lays expressly down that every check made in order to verify the insurance of vehicles must be made “in the context of a control not aimed exclusively at insurance verification” and, all of that, avoiding to stop the vehicle.
Thus, the European Union shall allow these controls provided that “those checks are non-discriminatory, necessary and proportionate to achieve the end pursued.”
With that aim, Brussels authorises the use of technological media that may automatically detect if the vehicle is driven without insurance, proposing at-a-distance checks using, for example, license plate cameras.
Likewise, and inevitably, if the checks take place this way, the authorities of every Member State will have power to cross-check in data bases whether the vehicle subject to the surveillance is insured or not, and in the latter case, stop it in order that it can’t be driven around.
Essentially, the draft Directive made by the Union is a guarantee to accident victims, because not only they will be better protected in the future, but also it will try to prevent the economic loss for national guarantee funds arising from circulating motor vehicles without a compulsory motor third party liability insurance.
In any case, we shouldn’t forget that it is a draft and its contents may be distant from the final contents approved by the European authorities. Therefore, at the Insurance Law department of Belzuz Abogados, S.L.P., we’ll buckle up and be attentive of news arising from it.
Belzuz Abogados SLP
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