S.I. No. 651/2003 - European Communities (Fourth Motor Insurance Directive) Regulations 2003

I, Seamus Brennan, Minister for Transport, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purposes of giving effect to Directive No.2000/26/EC of the European Parliament and of the Council of 16 May 2000¹ concerning the approximation of the laws of the Member States relating to insurance against civil-liability in respect of the use of motor vehicles and amending Council Directive 73/239/EEC and 88/357/EEC (Fourth Motor Insurance Directive) hereby make the following regulations:-

Citation

1. These Regulations may be cited as the European Communities (Fourth Motor Insurance Directive) Regulations 2003.

Interpretation

2. (1) In these Regulations —

“accident” means an accident to which these Regulations apply;

“Directive” means Directive 2000/26/EC of the European Parliament and of the Council of 16 May 2000;

“Directive 72/166/EEC² ” means Council Directive 72/166/EEC on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles, and to the enforcement of the obligation to insure against such liability;

“Directive 84/5/EEC³ ” means Council Directive 84/5/EEC on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles;

“designated territories” has the meaning assigned by the European Communities (Road Traffic) (Compulsory Insurance) (Amendment Regulations 2001 ( S.I. No. 463 of 2001 );

“EEA State” means a State which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2^nd May 1992⁴ and the protocol adjusting the Agreement signed at Brussels on 17^th March 1993;

“enactment” means a statute or an instrument made under a power conferred by statute;

“establishment” means the head office, agency or branch of an insurance undertaking as defined in Article 2(c ) of Directive 72/166/EEC;

“exempted person” has the meaning assigned to it by section 60 of the Road Traffic Act, 1961 (No. 24 of 1961) (as amended);

“insurance undertaking” means an undertaking which has received its official authorisation in accordance with article 6 or article 23(2) of 73/239/EEC⁵ ;

“insured vehicle” means a vehicle for which a policy of insurance issued by an insurance undertaking is in force and other cognate words shall be construed accordingly;

“injured party” means any person entitled to compensation in respect of any loss or injury caused by vehicles;

“Member State” means a Member State of the European Communities;

“EEA State of residence” means the EEA State of normal residence of an injured party;

“Minister” means Minister for Transport;

“normally resident in EEA State” means a person whose place of normal residence is in that State;

“normal residence” has the meaning assigned to it by regulation 3 of the Vehicle Registration Tax (Permanent Reliefs Regulations 1993 ( S.I. No. 59 of 1993 ) and other cognate words shall be construed accordingly;

“specified territories” means “designated territories” other than an EEA State;

“State vehicles” has the meaning assigned to it by section 4 (2) of the Road Traffic Act, 1961 ;

“Third Country” means a country other than an EEA State or specified territories;

“vehicle” has the meaning assigned to it by article 1(1) of Directive 72/166/EEC;

“the EEA State in which the vehicle is normally based” means the territory of the EEA State in which the vehicle is normally based as defined in Article 1(4) of Directive 72/166/EEC.

(2) In these Regulations, unless otherwise indicated -

(a) a reference to a Regulation is to a Regulation of these Regulations, and

(b) a reference to a paragraph or subparagraph is a reference to paragraph or subparagraph of the provision in which the reference occurs.

(c) Except for a word or phrase defined in paragraph (1), or where otherwise indicated, a word or phrase to which a meaning has been assigned by a Directive referred to in these Regulations has that meaning.

(3) In these Regulations a reference to an enactment shall be construed as a reference to the enactment as amended by any subsequent enactment, including these Regulations.

Parties to whom these Regulations apply

3. (1) Subject to paragraphs (2) and (3), these Regulations shall apply to an injured party, who is normally resident in an EEA State, and who is entitled to compensation in respect of any loss or injury resulting from an accident in an EEA State other than an EEA State where the party is normally resident and which was caused by a vehicle that at the time of the accident was insured and normally based in an EEA State.

(2) Without prejudice to the legislation of Third countries on civil liability and private international law, these regulations shall apply in respect of an injured party who is normally resident in an EEA State and who is entitled to compensation as a result of an accident in a specified territory where such accident was caused by the use of a vehicle that at the time of the accident was insured and normally based in an EEA State.

(3) Regulations 4 and 6 shall only apply in respect of an accident caused by the use of a vehicle which at the time of the accident was insured through an establishment in an EEA State and normally based in an EEA State other than the state of residence of the injured party:

(4) Notwithstanding paragraphs (1) and (2), Regulation 7 shall also apply in respect of an accident caused by a vehicle that at the time of the accident was normally based in one of the specified territories.

Direct right of action

(5) An injured party shall be entitled, without prejudice to his right to issue proceedings against the insured person, to issue proceedings against an insurance undertaking that is authorised to transact compulsory motor insurance business in the State in respect of an accident caused by a vehicle insured by that undertaking and the insurance undertaking shall be directly liable to the injured party to the extent that it is liable to the insured person.

(6) The requirement to appoint a claims representative in accordance with Regulation 4(1) does not limit in any way the entitlement of an injured party as provided for in paragraph (5).

Claims Representative

4. (1) Each insurance undertaking that is authorised to transact compulsory motor insurance business in the State shall appoint a claims representative in each other EEA State, which claims representative shall be selected at the discretion of the appointing insurance undertaking.

(2) Each claims representative shall be granted sufficient representational authority and powers by the insurance undertaking that appointed it as will enable the said claims representative to settle claims in full.

(3) A common claims representative may be appointed to represent more than one insurance undertaking.

(4) Each insurance undertaking shall notify to the Information Centre, the name, address, telephone number, fax number and electronic mail address of the claims representative that it has appointed in each EEA State.

(5) The claims representatives shall be resident or established in the respective EEA State for which they have been appointed.

(6) A claims representative shall handle and settle claims by injured parties to whom Regulation 3 applies that are made against the insurance undertaking which he or she represents.

(7) The duties of a claims representative shall include -

(a) the collection of all the information necessary to the full consideration and settlement of a claim,

(b) the taking of all measures necessary to negotiate a settlement of a claim.

(c) where so required by a claimant, the examination of a claim and the carrying on of all communications with the claimant in relation thereto, in the official language of the EEA State in which the claimant normally resides.

(8) Not more than 3 months after the date on which an injured party presents a claim for compensation either directly to an insurance undertaking or to a claims representative, the said insurance undertaking or claims representative shall either -

(a) make a reasoned offer of compensation in any case where liability is not contested and the damages have been quantified or

(b) provide a reasoned reply to the points made in the claim in any case where liability is denied, or has not been clearly determined, or the damages have not been fully quantified.

(9) An insurance undertaking or claims representative which fails to comply with paragraph 8 shall be guilty of an offence within the meaning of Regulation 59 of the European Communities (Non-Life Insurance) Framework Regulations 1994, ( S.I. No 359 of 1994 ) (as amended) and shall on summary conviction be liable to the fine specified therein.

(10) Where the insurance undertaking or claims representative is in breach of paragraph 8, the interest at the rate per annum specified for the time being in section 26 of the Debtors (Ireland) Act, 1840, as varied from time to time pursuant to section 20 of the Courts Act 1981 (No. 11 of 1981) (as amended), is payable by the said insurance undertaking, on any sum awarded to an injured party from the day on which the said breach occurred.

(11) A claims representative shall not constitute a head office, agency or branch of an insurance undertaking in any EEA State.

Information Centre

5. (1) The Motor Insurers' Bureau of Ireland is hereby approved as the Information Centre in accordance with Regulation 5 of the Directive.

(2) The Information Centre shall co-ordinate the compilation and dissemination of information concerning the insurance policies in force in respect of vehicles normally based in the State to the extent to which requests have been submitted to it.

(3) The information necessary for compliance with paragraph (2) shall include -

(a) the registration numbers of all vehicles that are normally based in the State,

(b) the policy reference numbers of each policy of insurance covering insured vehicles that are normally based in Ireland for all liability, other than carrier's liability arising out of the use of vehicles on land or the date of termination of the insurance cover, where the period of validity of an insurance policy has expired

(c) The number of the green card or frontier insurance policy in respect of a vehicle to which article 4 of Directive 72/166/EEC applies.

(d) The name, address, telephone number, fax number and electronic mail address of each relevant insurance undertaking and of the claims representative appointed in accordance with Regulation 4.

(e) The name, address, telephone number, fax number and electronic mail address of an exempted person or person designated by the exempted person to act on its behalf in relation to the matters provided for in these Regulations,

(f) The name, address, telephone number, fax number and electronic mail address of the person designated by the relevant Minister to act on his behalf in relation to State vehicles provided for in these Regulations,

(4) (a) An insurance undertaking that is authorised to transact compulsory motor insurance business in the State, an exempted person or person designated by him and person designated by the Minister in relation to State vehicles, shall maintain and provide any information that the Information Centre is obliged to compile and disseminate in accordance with paragraphs (2) and (3), upon request by the Information Centre.

(b) Subject to subparagraph (c), a request from the Information Centre pursuant to subparagraph (a) shall be complied with by whom it was addressed or in the event that addressee does not possess the required information, a response to that effect, such that the required information or response is in the possession of the Information Centre within 7 working days or as soon as practicable thereafter following the making of such request.

(i) after the termination of the period of cover of the insurance policy in the case of an insurance undertaking and

(ii) after the ownership or control of the vehicle ceases in the case of an exempted person,

(iii) after the vehicle ceases to be a State vehicle in the case of a person designated by the relevant Minister.

(5) (a) On request, the Information Centre shall provide to an injured party, or a party authorised to act on his or her behalf, if the injured party has a legitimate interest in obtaining this information, involving one or more vehicles, with the name and address of the registered owner or keeper of the vehicle or vehicles in question,

(b) For the purposes of subparagraph (a) the Information Centre shall provide:

(i) the name and address of the insurance undertaking that provided insurance policies in respect of each vehicle involved in the accident, or

(ii) the name and address of the exempted person that is the owner of any such vehicle, or

(iii) the name and address of the relevant Minister in relation to the State vehicle, if applicable.

(6) A request made under this regulation shall be made in writing or by electronic mail, shall contain sufficient information to identify the vehicle in respect of which the information is being sought and shall be received no later than 7 years after the date of the accident.

(7) The Information Centre shall co-operate with the information centres in each other EEA State in relation to the provision of information in accordance with these Regulations.

Compensation Body

6 (1) The Motor Insurers' Bureau of Ireland is hereby approved as the Compensation Body for the State for the purposes of the Directive.

(2) Subject to paragraph (3) an injured party to which these Regulations apply and normally resident in the State may present a claim for compensation to the Compensation Body where:

(a) that person claims to be entitled to compensation in respect of an accident occurring either in an EEA State other than the State or in the specified territories,

(b) the loss or injury to which the claim relates has been caused by or arises out of the use of a vehicle which is normally based in an EEA state other than the State, and insured through an insurance undertaking established in an EEA State other than the State, and

(c) the injured party had presented a prior claim for compensation to the said insurance undertaking or its claims representative and the said insurance undertaking or claims representative had not provided a reasoned reply within 3 months of such presentation, in accordance with Regulation 4 (8) (a), or

(d) the said insurance undertaking has failed to appoint a claims representative in the State, unless such insurance undertaking has not provided a reasoned reply within 3 months of the presentation of a claim for compensation in accordance with Regulation 4(8)(b).

(3) Paragraph (2) shall not apply in any case where an injured party has taken legal action directly against the insurance undertaking concerned in respect of the vehicle which caused the accident.

(4) On receipt of a claim pursuant to paragraph (2), the Compensation Body shall immediately inform -

(a) the insurance undertaking in respect of the vehicle the use of which is alleged to have caused the accident or the claims representative,

(b) the Compensation Body in the EEA State where the insurance undertaking which issued the insurance policy is established,

of the making of such claim and will respond to the said claim within a period of 2 months of presentation thereof.

(5) The Compensation Body shall cease forthwith to act in respect of a claim if the insurance undertaking or its claims representative subsequently makes a reasoned reply to the claim.

(6) The Compensation Body shall determine the validity of a claim and make compensation payments in respect of a claim, it deems valid, as if it were the insurance undertaking liable to the injured party for the loss and damage in respect of the accident which is the subject of the claim.

(7) Subject to paragraph (6), the provisions of this Regulation shall be without prejudice to -

(a) the right of the State to regard a payment of compensation by the Compensation Body as subsidiary or non-subsidiary to any legal proceedings which may be issued by the injured party, and

(b) the right to make provision for the settlement of claims between the Compensation Body and the person or persons who caused the accident and other insurance undertakings, Government Department or Health Board that may be required to make payments to the injured person in respect of the same accident.

(8) The Compensation Body may not make the payment of compensation subject to the injured party being required to establish in any way that the person liable for compensation is unable to or is unwilling to, pay the said compensation, or any conditions other than those specified in these Regulations.

(9) Where the Compensation Body has paid compensation to a person normally resident in the State, it shall be entitled to claim reimbursement of the amount of compensation so paid from the compensation body in the EEA State in which the insurance undertaking which issued the policy in respect of the vehicle that gave rise to the liability, is established.

(10) Where a compensation body in another EEA State has paid compensation to a person normally resident in that EEA State in respect of an accident involving a vehicle the policy for which was issued by an insurance undertaking established in the State, the compensation body shall be liable to indemnify the foreign compensation body.

(11) Whenever any compensation body receives a claim pursuant to paragraphs (7) or (8), it shall be subrogated to the injured party's rights against the person liable for the payment of compensation or his insurance undertaking.

7. (1) Where

(a) it is not possible to identify a vehicle involved in an accident which gives rise to a claim to which these Regulations are applicable, or,

(b) where, within 2 months of the date of such accident, it is not possible to identify an insurance undertaking that has issued a policy for the vehicle in question,

an injured party that is normally resident in the State may make a claim for compensation to the Compensation Body.

(2) In the event of a claim on the Compensation Body on foot of subparagraph (a) the Compensation Body shall compensate the injured party in accordance with the provisions of article 1 of Directive 84/5/EEC as if it were the body authorised under paragraph 4 of that article and the accident had occurred in the State.

(3) In the event of the payment of compensation by the compensation body under paragraph (2) the compensation body shall then have a claim under the conditions set out in paragraph (7)

(a) where the insurance undertaking cannot be identified, against the guarantee fund provided for in Regulation 1(4) of Directive 84/5/EEC in the EEA State in which the vehicle which caused the accident was normally based;

(b) in the case of an unidentified vehicle, against the guarantee fund in the EEA State in which the accident took place;

(c) in the event of a third country vehicle, against the guarantee fund of the EEA State in which the accident took place.

8. (1) Subject to paragraph (2), the Information Centre and the Compensation Body shall be responsible for the regulation of the systems and procedures that are required for the discharge of their functions under these Regulations.

(2) In the event of a failure by the Information Centre or the Compensation Body to discharge its functions under these Regulations, the Minister may direct that the said functions be discharged within a specified period.

(3) The European Communities (Non-Life Insurance) Framework Regulations 1994 ( S.I. No. 359 of 1994 ) (as amended) shall, with the following modifications and any other necessary modifications, to those Regulations, apply to these Regulations, and references in those Regulations or the provisions of those regulations shall, unless the context otherwise requires, be construed as including references to these Regulations or the provisions of these Regulations-

(a) by the insertion in Regulation 2 of the following definition:

“‘Claims representative’ means a person appointed as a claims representative by an insurance undertaking pursuant to Regulation 4(1) of the European Communities (Fourth Motor Insurance Directive) Regulations 2003 (S.I. No. of 2003) and shall be construed as a ‘person concerned’ within the meaning of Regulation 59”

(b) by the insertion in Regulation 7(2) of the following paragraph:

“(f) It shall communicate the name and address of the claims representative appointed or to be appointed in each EEA State other than the EEA State in which the authorisation is sought if the risks to be covered are classified in class 10 of point A of Annex 1, other than carrier's liability.”

“(h) It shall communicate the name and address of the claims representative appointed or to be appointed in each EEA State other than the EEA State in which the authorisation is sought if the risks to be covered are classified in class 10 of point A of Annex 1, other than carrier's liability.”

GIVEN under my Official Seal

27^th November 2003.

Séamus Brennan

Minister for Transport

Explanatory Note

(This note is not part of the Instrument and does not purport to be a legal interpretation)

These regulations give legal effect to the provisions of Directive 2000/26/EEC of the European Parliament and of the Council of 16 May 2000 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and amending Council Directives 73/239/EEC and 88/357/EEC (Fourth Motor Insurance Directive)

The Directive makes special provisions for the processing of certain claims for compensation for injury or damage arising as a result of accidents occurring in a Member State of the European Communities other than the Member State of residence of the injured party.

These regulations also provide for

• a direct right of action against insurers authorised to transact motor insurance business in the Republic of Ireland in the case of relevant accidents

• the appointment of claims representatives by such insurers in each of the other Member States with sufficient powers and authority to handle and settle relevant claims in the language of the state to which they have been appointed; the appointment of such claims representatives will be a threshold condition for insurers who wish to transact motor insurance business in Republic of Ireland.

• the approval of the Motor Insurers's Bureau of Ireland (MIBI) as the Information Centre in Republic of Ireland for the purpose of providing information on insurers and insurance policies in force in respect of relevant accidents

• the approval of MIBI as the Compensation Body for relevant accidents in the case of failure of an insurer authorised to transact motor insurance business in Republic of Ireland to appoint a claims representative, settle a claim within three months of its receipt or to make a reasoned response within three months. Compensation for uninsured and unidentified accidents to which the regulations apply will also be dealt with in the first instance by the MIBI as compensation body.

These regulations also apply to those States which are parties to the European Economic Area Agreement though not Member States of the European Community, currently Iceland, Norway and Liechtenstein.

¹ OJ No. L 181/65 of 20.7.2000

² OJ No. L 103, 2.5. 1972, p1

³ OJ No. L8, 30.12.1983, p17

⁴ Directive 2000/26/EC was added to annex IX of the European Economic Area Agreement by decision No.4/2001 of the European Economic Area Joint Committee which came into force on 1^st September 2001 (OJ No L66, 8.3.2001, p46)

⁵ OJ L.228, 24.7.1973, p3