REGULATIONS

Document Sample
REGULATIONS Powered By Docstoc
					                         Statutory Instrument

                            S.I. 651 of 2003




 European Communities (Fourth Motor Insurance Directive)
                  Regulations 2003

                      ___________________________




                    PUBLISHED BY THE STATIONERY OFFICE
                                       DUBLIN
                          To be purchased directly from the
                  GOVERNMENT PUBLICATIONS SALE OFFICE
             SUN ALLIANCE HOUSE, MOLESWORTH STREET, DUBLIN 2
                                 Or by mail order from
             GOVERNMENT PUBLICATIONS, POSTAL TRADE SECTION,
                      51 ST. STEPHEN‟S GREEN, DUBLIN 2
                    (Tel: 01-6476834/35/36/37; Fax 01-6476843)
                              or through any bookseller.




(PRN 1407)                                               Price €2.54
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 2000 1 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 17th March 1993;

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

1
  OJ No. L 181/65 of 20.7.2000
2
  OJ No. L103, 2.5.1972, p1
3
  OJ No. L8, 30.12.1983,p17
4
  Directive 2000/26/EC was added to annex 1X 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)
           “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;



5
    OJ L.228, 24.7.1973, p3
      “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.

    (c)   The information referred to at subparagraph (a) and (b) shall be
          maintained for a period of 7 years;
          (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,

    (c)    the person alleged to have caused the accident, if the name of
           that person is known,

    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.”
(c)   by the insertion in Regulation 49 of the following paragraph

      “(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
                                                27th 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.

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:9
posted:8/4/2011
language:English
pages:13