Expert Group on European Insurance Contract Law. Meeting of November 2013

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1 Expert Group on European Insurance Contract Law Meeting of November 2013 DISCUSSION PAPER 1 7: MOTOR INSURANCE 1. THE MOTOR INSURANCE MARKET IN THE EU Europe has the largest motor insurance market in the world. 2 Motor insurance represents with about 30% of total European non-life premium income the largest non-life insurance sector in Europe. The market in the EU is largely dominated by those of France, Germany, Italy, Spain and the UK, which together account for about 75 % of all motor insurance. Specialist motor insurers exist in all Member States, although the leading operators are generalist, multi-line insurers. 2. CROSS-BORDER MOTOR INSURANCE IN THE EU Cross-border Motor Insurance in the EU can occur on two different bases, namely on a Freedom of Establishment (FOE) basis through branches of insurance companies established in other Member States than that of the insured person, and on a Free Provision of Services (FPS) basis through direct cross-border contracts of the insured with insurance companies established in other Member States. a) Freedom of Establishment (FOE) basis 1 This paper does not reflect the view of the Commission as an institution. 2 With more than 315 million vehicles of all types on the roads in 2007, the European market was the largest motor market in the world, ahead of North America with approximately 270 million vehicles. CEA Statistics N 38, The European Motor Insurance Market, February

2 Motor insurance premiums written on the FOE basis represent only 1.7 % of the total motor insurance market in the EU. 3 The most important firms in motor insurance written on an FOE basis relative to the size of their home market are based in Ireland, the UK, Latvia and Belgium. 4 In absolute terms, it is UK, French, Irish and Belgian firms that dominate (accounting for 77 % of the total business written on a FOE basis). UK firms alone account for about 1/3 of the total. 5 In Belgium, Germany, Ireland, Italy and the UK, operators on a branching basis are most important in absolute terms (relative to market size, it is the motor insurance markets of Belgium, Estonia, Ireland and Luxembourg where branches on a FOE basis are most important). 6 b) Free Provision of Services (FPS) basis A further 0.6 % of the total market is written under FPS. 7 Ireland, Luxembourg and Malta are the most significant players in FPS, relative to their own market sizes. In absolute terms, it is firms based in Ireland, the Netherlands and the UK that are most significant. 80 % of the total value of premiums written under FPS is derived from firms headquartered in Ireland and the UK. The UK is the most important 3 Retail Insurance Market Study, MARKT/2008/18/H, For Belgium, the preferred destination markets are France, the Netherlands and Luxembourg. These three countries account for about two-thirds of the outgoing business written by Belgian firms on a FOE basis. UK firms are much more geographically diverse in the location of branches with at least one branch writing motor insurance in 15 Member States. There is no motor insurance business being written on a FOE basis by firms from Bulgaria, Estonia, Finland, Hungary, Luxembourg, Malta, Poland or Romania. 5 Retail Insurance Market Study, MARKT/2008/18/H, In Italy, the incoming business is written by firms from the UK, Ireland and France (with branches of UK firms accounting for 80 %). For Ireland, Belgium, Italy and the Netherlands, the premiums originate mainly from branches run by UK operators. In Bulgaria, Hungary, Romania and Slovenia there is no motor insurance business written by branches. 7 Retail Insurance Market Study, MARKT/2008/18/H,

3 destination for Irish insurers. UK insurers are notably more geographically diverse in their operations, acting under FPS in all other Member States for own damage cover. Ireland and Italy are the key locations for FPS business and these, together with the Netherlands, represent just under half of the premiums written by UK insurers under FPS. About 60 % of the business on a FPS basis by Dutch-based insurers is written in Germany. 8 c) Number of operators The motor insurance sector consists of two main categories, namely third party liability motor insurance (M3PL) and comprehensive motor insurance. In the M3PL sector, the number of national operators (including subsidiaries with non-national parents) exceeds the combined total of FOE and FPS operators in all Member States. In the comprehensive motor insurance sector, by contrast, there are more operators on either a FOE or FPS basis than those supervised by the respective regulators in six Member States (Belgium, Estonia, Finland, Latvia, Luxembourg and Malta). 9 It should be noted that cross-border activity may develop also between specific pairs of Member States on a reciprocal basis. There is significant reciprocity, particularly between the UK and Ireland. Over 27 % of all motor premiums written on a FOE basis within the EU were either sold by the branches of UK firms in Ireland or by the branch of an Irish firm in the UK. 10 In FPS activity, the proportion is lower, but still above 15 % The Luxemburgish companies are active predominantly in the neighbouring states of Belgium, Germany and France. A single Maltese firm is writing business in the UK and Ireland these two states account for 99.8 % of the premiums written out of Malta. 9 Retail Insurance Market Study, MARKT/2008/18/H, Over 80 % of the FOE motor premiums written by Irish firms are made through a single branch in the UK. This Irish firm is in fact the 11th largest motor insurer in the UK, focusing in particular on younger drivers. 11 One Czech insurer has a branch in the Slovak Republic (this being the only branching in the motor sector by Czech insurers), but volumes are not significant. The reverse is true for Slovak firms with one branch selling motor in the Czech Republic, however, at higher volumes of business. However, reciprocity is far from automatic for example in the Baltic States one Lithuanian-based insurer is active in Latvia and one Latvian firm is active in Estonia (with an 8 % market share in the motor market), with two Latvian firms active in Lithuania. However, Estonian firms do not appear to be active in Latvia or Lithuania either under FOE or FPS. 3

4 d) No Pan-European Products Currently, there is no evidence for the existence of products sold to consumers on a pan- European basis. Possible reasons are: 12 Problems with the availability of the statistical data necessary to populate the actuarial models underpinning the calculation of premiums; Cross-border claims management may still be complex and expensive for insurers; A pan-european product could be difficult to price competitively. For instance, a M3PL product that could be marketed across the EU would require unlimited cover (due to the need to conform to the highest common denominator). This would result in a product that would be more expensive than the locally customised competition in any market where limitations in cover are in place. Differences in national insurance contract law which might lead to costs being incurred in checking compliance with local law 13 (and also potentially related to the re-design of those products) or even expose the insurer to additional risk. In fact, in a not representative study insurance providers indicated broad (but not unanimous) support for the view that a number of factors discourage operators from acting on a FPS basis, among them differences in insurance contract law that limit the market opportunity and/or expose the insurer to unacceptable risks. 14 In the data available up to 12 See the retail insurance market study, MARKT/2008/18/H, Differences appear to include that the compensation limits in M3PL continue to vary significantly between Member States, and the varied application of General Good provisions across Member States (for instance with regard to the Gender Directive). 14 Retail Insurance Market Study, MARKT/2008/18/H, 3.12(b). Based on a survey conducted by Europe Economics in the context of the study across four stakeholder groups insurers, insurance intermediaries, national supervisors and consumer associations, receiving 65 responses from 20 Member States in the period June August

5 now, there is however no indication of the specific problematic issues in contracts and the underlying precise differences in insurance contract laws. The European Financial Stability and Integration Report indicates, however, that there "are signs of EU products gradually emerging in motor insurance, notwithstanding differences in e.g. crash rates. 3. CURRENT EU LEGISLATION: MOTOR INSURANCE DIRECTIVE 2009/103/EC The current EU legislation on motor insurance is contained in the Motor Insurance Directive 2009/103/EC. 16 Under the Directive, subscribers to compulsory motor insurance policies (M3PL) in all EU Member States are covered for motoring throughout the EU. Vehicles should be registered in the country of residence of the policy holder and/or vehicle owner. Provided their registration is in order, they may be insured by an insurer established in the country of registration or in any other EU country. Insurers providing cross-border insurance services must fulfil certain formalities. Whereas other provisions of the directive can be considered as full harmonisation, as far as contract-law related issues are concerned, the directive (Article 9) prescribes minimum harmonisation, i.e. minimum third-party liability insurance cover in EU Member States. 4. POSSIBLE CONTRACT-LAW RELATED OBSTACLES TO CROSS-BORDER MOTOR INSURANCE National laws on motor liability insurance differ to a significant extent which may have different consequences for insurers who want to offer their products abroad. The following 15 efsir_en.pdf, p 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, OJ L 263, , p. 11 5

6 contract law areas are singled out in this section in view of their particular relevance to motor liability insurance. These are areas where specific rules have been adopted in a number of national laws in relation to motor liability insurance covering the whole life cycle of a contract. These areas however do not represent an exhaustive list of contract law issues which are specific to motor insurance or which may be of key importance in all situations. While acknowledging that in the absence of specific rules, general contract law rules also apply to motor insurance, this paper does not focus on the general insurance contract law rules, as they have already been discussed in Discussion Papers II, III and IV. a) Coverage amounts The main contractual issue in the above-mentioned Directive are the minimum amounts covered by compulsory insurance (Article 9 of the directive). Coverage amounts are an essential element of motor insurance contracts and apart from premiums an important element in the competition among providers. Article 9 provides that without prejudice to any higher guarantees which Member States may prescribe, each Member State shall require M3PL insurance to be compulsory at least in respect of the following amounts: (a) in the case of personal injury, a minimum amount of cover of per victim or per claim, whatever the number of victims; (b) in the case of damage to property, per claim, whatever the number of victims. 17 The amounts Member States have introduced as minimum amounts differ to a significant extent: See for the revised amounts: Commission notice regarding the adaptation in line with inflation of certain amounts laid down in the Motor Insurance Directive 2009/103/EC (2010/C 332/01), 18 See: 6

7 Member State Personal injury Damage to property Austria Belgium Unlimited Bulgaria per victim, for injuries of more than one person Czech Republic Croatia Cyprus Denmark Estonia Finland Unlimited France Unlimited Germany per accident per accident Greece per accident per accident Hungary Ireland Unlimited Italy Latvia Lithuania Luxembourg Unlimited Unlimited 7

8 Malta Netherlands per accident per accident Poland per accident per accident Portugal per accident per accident Romania per accident per accident Slovak Republic Slovenia Sweden Spain United Kingdom Unlimited per accident The significant differences between these amounts (for personal injury between and unlimited coverage in Belgium, Finland, France, Ireland, Luxembourg and the UK, for damage to property between and unlimited coverage in Luxembourg) could constitute an obstacle to cross-border insurance if for instance an insurer from a Member State with a low minimum amount wants to offer his product in a Member State with a high minimum amount since his premium calculations will be based on the lower minimum amount. b) Bonus-malus systems Bonus-malus systems are very common in motor insurance. A bonus is a discount in the premium which is given on the renewal of the policy if no claim has been made in the 8

9 previous year. A malus is an increase in the premium if there has been a claim in the previous year. Bonus-malus systems differ between Member States. 19 For instance, in France and Luxembourg, the bonus-malus systems are regulated by the law, 20 whereas for example in Germany 21 and the UK this is not the case. There, insurers are free to decide whether and if so which bonus-malus system they offer. 22 The differences between the systems could create an obstacle for instance for British and German insurers who want to offer their products in France where they would have to comply with the national law on bonus-malus systems. For instance, - unlike in the UK - it would not be possible for British insurers operating in France or Luxembourg to adapt their discount systems to certain target groups (e.g. persons older than 50 years) or to offer so-called "no driver no claims discounts" (discounts for persons who have been driving without accidents for certain time periods with other persons cars without an insurance contract of their own). Furthermore, in France the maximum discount is 50 %, whereas in the UK and Germany discounts of more than 50 % are possible. There is also a difference in the number of discount steps (France: 20, Germany: normally 29, UK: between 5 and 10). As a consequence, there is a significant need for adaption of their contracts with possible additional costs and impact on the premium for foreign insurers coming from a country 19 See in this context also the following judgments of the European Court of Justice in which the Court ruled on the compatibility of national bonus/malus systems with the fundamental freedoms: Judgment of 7 September 2004, Commission/Luxemburg, Case C-346/02, 2004 I-7517; Judgment of 7 September 2004, Commission/French Republic, Case C-347/02, 2004 I See Art. L 111-4, A of the French Insurance Code. Luxembourg: Loi du 16 avril 2003 relative à l assurance obligatoire de la responsabilité civile en matière de véhicules automoteurs; Art. 11 Règlement grand-ducal du 11 novembre 2003 pris en exécution de la loi du 16 avril 2003 relative à l assurance obligatoire de la responsabilité civile en matière de véhicules automoteurs. 21 In Germany, the Association of Insurers (GDV, Gesamtverband der Deutschen Versicherungswirtschaft) has developed a bonus-malus system which most insurers follow. 22 See for details: Taik, Monir, Mitgliedstaatliche Grenzen der Gestaltung von Versicherungsprodukten im Europäischen Binnenmarkt für Versicherungen, Berlin, 2012, p. 55 ff. 9

10 where no statutory bonus-malus system is foreseen who want to offer their products in a country where a statutory bonus-malus system exists. c) Other specific (mandatory) national rules There are furthermore other specific rules under national laws which insurers that want to offer motor insurance abroad must be aware of and must comply with. This is a consequence of the fact that under Art. 7(4) of the Rome I Regulation 23 the compulsory rules relating to mandatory insurance largely prevail. Thus, products must be adapted to the legal requirements of the specific markets. In Poland, for instance, mandatory motor liability insurance is fully regulated by mandatory provisions. Therefore, motor insurance contracts often directly refer to the respective insurance law provisions. 24 Foreign insurers may therefore face obstacles when entering the relevant market, due to additional operational costs, for instance legal costs for adaptions and modifications of their contracts and IT costs. On the other hand, many national laws on motor insurance regulate these contracts often only punctually and partially. A good example of such rather limited partial regulation is the German Law on mandatory motor insurance 25. Even such partial regulation can, however, be an obstacle to cross-border motor insurance since the insurer who wants to operate abroad 23 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), OJ L 177, , p Art. 7(4) provides as follows: The following additional rules shall apply to insurance contracts covering risks for which a Member State imposes an obligation to take out insurance: (a) the insurance contract shall not satisfy the obligation to take out insurance unless it complies with the specific provisions relating to that insurance laid down by the Member State that imposes the obligation. Where the law of the Member State in which the risk is situated and the law of the Member State imposing the obligation to take out insurance contradict each other, the latter shall prevail; (b) by way of derogation from paragraphs 2 and 3, a Member State may lay down that the insurance contract shall be governed by the law of the Member State that imposes the obligation to take out insurance. 24 See the Minutes of the second meeting of the Expert Group, p Gesetz über die Pflichtversicherung für Kraftfahrzeughalter. 10

11 must be aware of it and comply with it regardless of whether or not there is an equivalent to such legislation in his home market. Some examples of such specific national rules are: aa) Form of motor insurance contracts Some national laws require a particular form of motor insurance contracts like special vignette stickers. Non-compliance can lead to the nullity of a contract. 26 In Bulgaria, for instance, the insurance policy is a specially numbered form which is printed in accordance with the state procedure for printing securities. The policy has to be supplemented by a special vignette. Only the combination of the two makes the contract valid. The costs for providing the policy and the vignette are not negligible. Such complicated form requirements can create additional administrative costs for foreign insurers that want to operate in the market of such a Member State. They can also limit the use of certain distribution channels that facilitate cross-border offer of insurance products, such as e-commerce. The insurance policy is the key document that contains and proves the main elements of the contract. That document seems to be subject to formal requirements that differ from one Member States to another. Some Member States such as Italy and Bulgaria 27 have adopted detailed rules on its content and form. The policy is declared as the form of the contract and thus is a document that needs the signature of the parties. Other Member States like Germany have only few rules on the policy content and regard it rather as a document with evidentiary significance. They only impose an obligation for the insurer to provide the policy to the insured. Specific national form requirements can be an obstacle to cross-border motor insurance since the insurer who wants to operate in a Member State with such rules must be aware of them and comply with them. In order to find about the necessary adaptations, insurers 26 Bulgaria, Code for Insurance, Art Also in Portugal there are special rules on the conclusion of compulsory motor liability insurance liability (Decree-law 291/2007 of 21/08/2007). 27 Bulgaria, Art. 184 of the Insurance Code. 11

12 would have to seek legal advice on the insurance law of the other Member State and on the adaptions necessary for offering the insurance abroad. This would lead to additional costs for the insurer. bb) Obligation to offer basic contracts In Italy, insurers must offer so-called basic contracts" in order to enable consumers to compare offers of different companies on the same basis. As a consequence, foreign companies which want to enter the Italian market have the obligation to develop basic contracts for motor liability insurance even if they do not want to sell this basic product but a more developed policy. This rule could in practice make it more costly for companies to enter the market, as they are burdened by additional costs. cc) Obligation to provide personalised quote to customer In Italy, there is a requirement to provide a personalised quote upon request of the customer. 28 The quote should contain a clear indication of the premium and the commission received by the intermediary (indicated by percentage and absolute value). Any specific exclusions or limitations of the rights of the customer should be highlighted. 29 In addition there are detailed rules on the contents and lay-out of the web-site where the quote may be provided. 30 Such particular national rules can constitute an obstacle to cross-border motor insurance since the insurer who wants to operate in a Member State with such rules must be aware of them and comply with them. In order to find about the necessary adaptations, insurers would have to seek legal advice on the insurance law of the other Member State and on the adaptions necessary for offering the insurance abroad. This would lead to additional costs for the insurer Art.5 of ISVAP Regulation 23/2008. Art.5 of ISVAP Regulation 23/2008. Art.6 of ISVAP Regulation 23/

13 dd) Renewal There are specific rules on renewal, e.g. in Italy and Bulgaria. In Italy, the tacit renewal of a motor insurance contract is forbidden and the maximum duration of the contract is one year. 31 In Bulgaria, there are no general rules on the renewal of insurance contracts. The period of validity of contracts is freely negotiated with exception of some specific cases like motor liability insurance. In mandatory motor insurance contracts, Art. 251 (2) of the Insurance Code creates the obligation for the customer to renew the contract before expiry of its term except in cases where the insured interest has ceased to exist. In Germany and Austria, contracts are prolonged by one year if they are not cancelled one month before expiry. 32 In Austrian law, there is an extraordinary right to terminate the contract in the case of an increase of the premium. 33 Since national rules concerning the renewal of motor insurance contracts vary, insurance contracts might need to be adapted if an insurance company decides to offer its products in another Member State. In order to find about the necessary adaptations, the company would have to seek legal advice on the insurance law of the other Member State and on the adaptions necessary for offering the insurance abroad. This would lead to additional costs for the insurer. ee) Claims Liquidation There are also specific rules on claims liquidation in motor insurance. For instance, the French Insurance Code contains a detailed chapter on claims liquidation with a specific rule on punitive interest rates in the case of non-performance by the 31 Liability motor mandatory insurance, art. 170-bis d.lgs /9/ (5) 2 of the German Code, 14 (2) of the Austrian Code a of the Motor Insurance Act. 13

14 insurer. 34 When the insurer has not made an offer of compensation to the victim within the statutory three-months time limit, 35 the amount of the compensation offered by the insurer or awarded by the court to the victim is ipso jure twice the legal interest rate as from the expiry of the time limit and until the date of the offer or the final judgement. Under German law, by contrast, the interest to be paid is by contrast the simple statutory interest. 36 In Bulgaria, there are detailed rules on claims liquidation as well. 37 The insurer must decide on claims within three months from the date on which the claim is filed. Where documents and proof are insufficient, the insurer may require additional documents. Within that deadline the insurer can either pay the sum of the compensation, or provide a reasoned answer for the refusal of payments or state that the grounds and extent of the damage have not been fully established. Furthermore, the insurer cannot refuse to decide on the claim where certain written documents supporting the claim have been presented. In cases of death or bodily injuries, the amount for compensation is fixed by an expert insurance committee of the insurer or by judicial procedure. In cases of damage to property, the compensation may not exceed the actual cost of the damage. Compensation for damage to motor vehicles shall be fixed in accordance with the regulations approved by the Financial Supervision Commission. For example, Slovak Law 38 provides that the insured party is obliged to notify the insurer in writing of the insured event within 15 days of its occurrence. The insurer is obliged, without undue delay, to undertake the investigations necessary to determine the scope of his Article L Insurance Code, créé par Décret n du 18 mars art. 2 JORF 20 mars 35 Article L211-9 of the Insurance Code. 36 See 3a (1) Nr. 2 of the German Law on mandatory motor insurance which refers to the statutory interest provided for by 288 (1) 2 BGB (German Civil Code). 37 Articles 269, 271, 273 of the Insurance Code CC; 10 of the Act No. 381/2001 Coll. On Compulsory MTPL insurance 14

15 obligation to pay insurance benefits. If the investigation cannot be finished within 1 month after the date when the insurer was informed about the insured event, the insurer is obliged to provide the insured with an adequate advance payment at the request of the insured. In conclusion, national laws and practices with regard to claims management in motor insurance vary significantly. For that reason, motor insurance contracts might need adaptations in case insurance companies want to offer their contracts cross-border. In order to find about the necessary adaptations, the company would have to seek legal advice on the insurance law of the other Member State and on the adaptions necessary for offering the insurance abroad. This would lead to additional costs for the insurer. 15

16 Questions for discussion 1. Are there other contract law areas which have not been mentioned in this paper and where differences are particularly relevant for motor insurance? 2. Are there contract law differences which particularly affect the cross-border supply of motor comprehensive insurance? 3. Is there a need for adaptations of the contract terms because of different rules if a policy is offered in different Member States? 4. If relevant, what is the extent of the necessary adaptations? 5. Do the adaptations affect the contract terms alone? 6. Do the adaptations also affect the product characteristics and lead to changes in the product design? 7. Do the adaptations lead to a re-assessment of the risk on a different actuarial basis? 8. If relevant, what are the costs for adaptations in this area (including time and legal costs)? 9. Does it make a difference whether the relevant provisions are mandatory or not? 16

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