Expert Group on European Insurance Contract Law. Meeting of 9-10 September 2013

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1 Expert Group on European Insurance Contract Law Meeting of 9-10 September 2013 DISCUSSION PAPER 1 5: LIABILITY INSURANCE Liability insurance aims to protect the insured from the risks of liabilities imposed by lawsuits and similar claims within the coverage of the insurance policy. Liability insurance is also designed to offer specific protection against third party insurance claims. 1. ECONOMIC IMPACT General liability insurance only accounts for a rather small part of the premiums of European insurers. Only 7 % of the non-life insurances premiums are underwritten for liability insurances in Europe. In 2011 the total amount of premium for general liability insurance cover was around 26 bn. around Europe (including Switzerland, Norway, Iceland, Turkey and Liechtenstein 2 ). The relevance of liability insurance is however not limited to these figures. Certain activities cannot be exercised without adequate compulsory insurance cover. Hence the possibility to get insurance cover also for other Member States is often crucial for professionals or companies to offer their services cross-border. 2. COMPULSORY NATURE In many countries, liability insurance is compulsory for those who are at risk of being sued by third parties for negligence. The most usual classes of compulsory policy concern the drivers of vehicles which will be dealt with later those who offer professional services to the public, those who manufacture products that may be harmful, constructors and those who offer employment. The reason for such laws is that the classes of insured are deliberately engaging in activities that put others at risk of injury or loss. Public policy therefore requires that such individuals should provide insurance so that, if they cause loss or damage to another, the injured will be compensated. 1 This paper does not reflect the view of the Commission as an institution. 2 InsuranceEurope, European general liability insurance 2011, p

2 This concerns for example certain professional activities. To date, Austria, Germany, Spain, Finland, France, Hungary, Portugal, Romania, Slovenia and the UK have notified compulsory insurance requirements for some activities. Additionally there are professional indemnity insurance requirements for professionals covered by the Professional Qualifications Directive 2005/36/EC 3.The host Member State may require a yearly written declaration including the details of any insurance cover for professional liability from the service provider before the temporary provision of cross-border services 4. Following the transposition of the Professional Qualifications Directive 2005/36/EC, practically all Member States require such a prior written declaration for at least some of the professions. Furthermore the host Member State may ask the service provider to inform the service recipients of the insurance cover 5. Although the Professional Qualifications Directive 2005/36/EC does not impose professional indemnity insurance obligations as such, it enables Member States to make the provision of professional indemnity insurance related information mandatory 6. Where a Member State imposes an obligation to take out insurance, an insurance contract does not satisfy that obligation unless it complies with the specific provisions relating to that insurance laid down by that Member State 7. Therefore, if an EU insurer would like to cover compulsory insurances in another Member State, it has to comply with all these specific provisions. These specific provisions can concern among others the sums insured, deductibles or exclusion clauses. This obligation could be rather burdensome. Apart from that there are also insurances which as such are not compulsory. While the conclusion of an insurance contract as such is not compulsory, the content is to a certain extent mandatory. If the parties agree to conclude such liability insurance, they would have to respect certain rules on the content, for example concerning the minimum amount of cover, possible deductibles or exclusion clauses. This may be a problem for insurance companies from other Member States which have to make sure that they comply with the rules. 3 Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (consolidated version 01/08/2012) 4 Art. 7 (1) Professional Qualifications Directive 2005/36/EC 5 Art. 9 (f) Professional Qualifications Directive 2005/36/EC 6 For details per Member State, see Scoreboard on Professional Qualifications Directive, available under: 7 Art. 179 (2) of the 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) 2

3 Most national laws of the Member States contain specific rules on liability insurance however the scope and content of those rules are different. In some countries like Bulgaria those rules are rather general and of a default nature, leaving the parties a substantial freedom to negotiate contract terms. In other countries, for instance in France, the liability insurance provisions are numerous and detailed and imply more standardised contract terms. If an insurance company wants to enter a market where many or most rules are mandatory it needs to adapt the products. This means that they will have to review their general terms and, possibly, alter the prices. This could make it more difficult to enter foreign markets. Questions on section 2: 1. To what extent are rules on liability insurance contract law mandatory? To what extents does the need for compulsory insurances differ in national laws? Do you think that diverse rules on compulsory liability insurance create impediments to cross-border offer of services? If so, can you provide examples to illustrate your answer? 2. If relevant, what is the extent of the necessary adaptations to the product? 3. If relevant, what would be the costs for adaptations in this area (including time and legal costs)? 4. Are B2B and B2C insurance contracts affected equally or are there differences? Could you give examples where they are affected equally and where they are not? 5. If there are impediments to cross-border offer of services would it matter whether those services are offered on the freedom of establishment basis or on freedom of services basis? 3. OCCURRENCE BASED VERSUS CLAIMS-MADE POLICIES Member States laws differ on the triggers for the payment of the insurer s money. The traditional trigger is the occurrence of the insured event. In this case the insurer is obliged to defend and to indemnify any loss which allegedly occurred as a result of an act or omission of the insured during the policy period. It is not necessary that the injured has already claimed the damage during the duration of the insurance contract. Thus, it might happen that even a long time after the termination of the insurance contract a third party evokes a claim for an event which happen during the duration 3

4 of the insurance contract. A few Member States laws 8 follow the traditional approach according to which liability insurance is written on an occurrence basis, partially at least by default. In one Member State 9 the existence of occurrence based liability insurance is compulsory, at least in some areas. Following a large number of major toxic tort scandals (primarily involving asbestos and diethylstilbestrol) insurers which had long-ago closed their books on policies written 20, 30, or 40 years earlier now found that their policyholders were being hit with hundreds of thousands of lawsuits which were based on those old policies. Therefore the new approach of claims-madepolicies was developed, under which the policy covers only those claims that are evoked against the insured and reported by the insured to the insurer during the policy period. For instance, in the United Kingdom this approach was followed to a large extent in B2B. Other countries foresee a mixed approach and allow claims-made and occurrence based policies explicitly by law. For instance, France 10 enables the parties to professional insurance contracts to choose between the traditional approach of occurrence based policies and the claims-made policies. However, the French law stipulates that for private liability insurances the principle of occurrence based policies applies. Although Luxembourg 11 and Belgium 12 foresee by default occurrence based policies, their laws allow for claims-made insurances - except for motor insurances - provided that the insured may claim damages up to three years after the termination of the insurance contract. Claims-made policies enable insurers to sharply limit their own long-term liability on each policy and are much more affordable than occurrence policies. They often include strict clauses that require policyholders to report even potential claims and that combine an entire series of related acts into a single claim. Normally insurance contracts grant a certain period for reporting after the end of the policy period to protect insured persons who are sued at the very end of the policy period. Such a reporting period might also be required by law. In France this period has to be at least five years, in Luxembourg at least three years and in Belgium 36 months provided the risk is not covered by other insurer. In countries with traditional occurrence based policies insurers offer in some areas claims-made policies although this has not been regulated by law. For instance in Germany in some areas parties 8 For instance, Austria (Section 149 Insurance Code), Germany (Section 100 VVG), Italy (Art Civil Code), Bulgaria with exception of construction liability insurance 9 Austria for lawyers, s. Section 21a Rechtsanwaltsordnung, Germany 10 France (Art. L Insurance Code) 11 Art. 81 Insurance Code 12 Art. 78 Insurance Code 4

5 to professional liability insurance may agree on claims-made policies. It seems that it is practically mainly used for directors and officers liability insurances (D&O insurances) 13. Also in Italy parties may agree on claims-made policies. In Germany 14 and Italy such agreements about a claims-made policy can be subject to the unfairness control as they do not concern the essential elements of an insurance contract. According to case law in Germany the policy for D&O insurances has in particular to provide for a certain reporting period within which the policy-holder can communicate claims by third parties to the insurer and for a retroactive cover for a certain period before the conclusion of the insurance contract. If these conditions are not fulfilled the claims-made policy would be considered as unfair 15. Furthermore, it could be 16 that German courts do not accept a claims-made policies if the professional liability insurance is requested by law as these policies have severe disadvantages for the third party. There are also Member States 17 where claims-made policies even assure cover for events which occurred before the conclusion of the insurance contract provided that the insured was not aware of the occurrence of the insured event and could not have been expected to have been aware. In some countries there is more freedom in concluding claims-made policies than in other Member States. Therefore insurance companies from Member States where claims-made policies are wide spread might face problems in Member States where the insurance companies only are allowed to offer occurrence based policies. Insurance companies would need to adapt their contracts accordingly and also to recalculate the price as the occurrence based insurance is much more expensive. It could be more difficult for insurance companies to offer their policies to clients in other Member States. Questions on section 3: 1. To what extents do rules on the trigger for the payment of the insurance money differ in national laws? Do you think that these diverse rules create impediments to cross-border offer of 13 Such insurance protects an organisation (usually a corporation) from costs associated with litigation resulting from errors made by directors and officers for which they are liable. 14 Paul Melot de Beauregard/Christian Gleich Aktuelle Problemfelder bei der D&O-Versicherung, NJW 2013, The question how long the reporting period in Germany has to be is still not decided by the Federal Supreme Court (BGH). Paul Melot de Beauregard/Christian Gleich Aktuelle Problemfelder bei der D&O-Versicherung, NJW 2013, 824: It is discussed whether one, two or three years would be sufficient. 16 The question to which extent claims-based policies in other areas than D&O insurances are admissible in Gemany is very much discussed. 17 For example France (Art. L Insurance Code) and the UK 5

6 services? If so, can you provide examples to illustrate your answer? 2. Would there be a need for adaptations of the standard terms and conditions for the same insurance product if it was offered in different Member States? 3. If relevant, what is the extent of the necessary adaptations? 4. If relevant, what would be the costs for adaptations in this area (including time and legal costs)? 5. Are B2B and B2C insurance contracts affected equally or are there differences? Could you give examples where they are affected equally and where they are not? 6. If there are impediments to cross-border offer of services would it matter whether those services are offered on the freedom of establishment basis or on freedom of services basis? 7. Does it make a difference whether a mandatory insurance is concerned? 4. EXTENT OF COVER In the area of compulsory liability insurance there are different legal rules concerning the extent of cover: 4.1. INSURED SUMS Concerning compulsory insurances rules on insured sums are mandatory in some Member States. For instance, according to German Law it is required that in case of compulsory insurance, the minimum sum insured shall be 250,000 per claim and 1 million for all claims per insurance year, unless otherwise provided by law 18. The contract of insurance may specify the content and scope of the compulsory insurance in more detail insofar as this does not endanger the fulfillment of the respective objective of the compulsory insurance and unless explicitly otherwise provided by legal provision. According to Austrian law 19 the insurer is only liable for the minimum sums fixed by the law and the risk it has taken over. For instance Austrian lawyers 20 have to conclude an insurance contract which 18 Section 114 VVG 19 Section 158 c Insurance Code 20 Section 21 a Rechtsanwaltsordnung, s. also Section 21 a Patentanwaltsgesetz for patent lawyers 6

7 provides cover of at least 400,000 per insured event. If a legal person provides legal advice, the sum amounts to 2.4 million COVER FOR EXPENSES FOR JUDICIAL AND EXTRA-JUDICIAL COSTS There are Member States 21 where liability insurance also covers the expenses for judicial and extrajudicial costs arising from claims asserted by a third party insofar as the circumstances necessitate the expenditure. The right of an insured faced with a claim by a victim should in principle include the right to the costs of his defense as well as any compensation payable. Indeed, the liability insurer must pay for these costs irrespective of whether or not the insured is actually adjudged liable to the victim. However there are different requirements for the reimbursement of such costs. It is sometimes required that the expenses are not unreasonable 22 or are necessary 23. Sometimes also a prior agreement of the insurer 24 is needed. Sometimes 25 liability policies do usually not include the costs of the insured in successfully defending a claim as the provision as to the costs normally applies only where the insurer is liable to indemnify the insured. However, in one Member State 26 costs will normally be limited; for example, as they are included together with damages in the sum insured, or where the loss is higher than the sum insured, the costs for legal expenses are limited to the same proportion which the indemnity provided bears to the insured s loss. In other Member States 27 such costs might also be reimbursed even if they exceed together with the damages the sum insured. In one Member State 28 legal expenses against the insured are limited to 25% of the capital insured. If the damage is more than the insured capital, legal expenses will be divided equally between the insurer and the insured. There are Member States 29 where the costs for defense also cover costs for criminal proceedings DEDUCTIBLES 21 Germany (Section 101 VVG), Austria (Section 150 VersVG), Luxembourg (Art. 85 Insurance Code) 22 Luxembourg, 23 Austria, Germany 24 Belgium (Art. 82 Insurance Code) 25 UK, Birds, p UK (Birds, p. 404) 27 S. PEICL, p Italy (Art (3) Civil Code) 29 Austria (Section 150 VersVG), Belgium (Art. 8 Insurance Code), France (Art Insurance Code), Germany, (Section 101 VVG), Italy (Art Civil Code), the Netherlands (Art. 7:962 Civil Code) 7

8 In an insurance policy, the deductible is the threshold amount of expenses that the insured has to pay in any case. As a result, insurance premiums are typically cheaper when they involve higher deductibles. In some areas it may be common to agree on a certain amount of deductible. Especially where Member States require compulsory insurances that such deductibles may not be admissible. It may also be that the deductibles are subject to different conditions regarding the Member States. In Germany, for example, in case of D&O insurances it is required by law 30 that such insurance should provide for a deductible of no less than 10 per cent of the damage up to at least an amount equal to 1.5 times the fixed annual compensation of the managing board member. It seems that the rules on extent of cover differ between the Member States. In some countries there are mandatory minimum covers, but the insured amounts differ. Sometimes deductibles are required by law. Also rules on the extent of cover for legal expenses diverge. Therefore insurance companies from Member States would need to adapt their contracts accordingly and/or also to recalculate the price if for example no deductible is allowed. It could be therefore more difficult and burdensome for insurance companies to offer their policies to clients in other Member States. Questions on section 4: 1. To what extent are rules on sums insured, cover of legal expenses and deductibles mandatory? To what extents do the rules on the extent of cover differ in national laws? Do you think that diverse rules create impediments to cross-border offer of services? If so, can you provide examples to illustrate your answer? 2. Would there be a need for adaptations of the standard terms and conditions for the same insurance product if it was offered in different Member States? 3. If relevant, what is the extent of the necessary adaptations? 4. If relevant, what would be the costs for adaptations in this area (including time and legal costs)? 5. Are B2B and B2C insurance contracts affected equally or are there differences? Could you give examples where they are affected equally and where they are not? 6. If there are impediments to cross-border offer of services would it matter whether those 30 Section 93 (2) 3 Stock Corporation Act (AktG), s. also Paul Melot de Beauregard/Christian Gleich, Aktuelle Problemfelder bei der D&O-Versicherung, NJW 2013, 824 8

9 services are offered on the freedom of establishment basis or on freedom of services basis? 7. Does it make a difference whether a mandatory insurance is concerned? 5. CAUSATION AND MITIGATION OF THE LOSS It seems to be a general principle 31 that no cover is provided if the insured or the policyholder has caused the damage deliberately and illegally whereas loss caused by negligence is coverable by insurance. In contrast to other kinds of insurances even losses caused by gross negligence are normally covered. However, in one Member State 32 reckless or gross negligent behaviour is excluded. There are also Member States 33 which allow the insurer to exclude in the policies at least cases of gross negligence. We presume that in detail the rules in Member States differ. National rules on what can still be considered as negligence and what has to be considered as intentional also diverge. While it is generally accepted that liability insurance covers only cases where damages were caused due to negligence, for instance, in Bulgaria the insurer in compulsory liability insurance has to cover also intentional damages caused by the insured 34. The duty to mitigate loss once the insured event has occurred is recognised in many legal systems. However in one Member State 35 there is no legal duty to mitigate the loss. It needs to be agreed in the contract. In a few Member States the failure to mitigate loss is treated similarly as the causation of the insured event. Other Member States foresee special rules. Generally, the insurer has the right to reduce compensation to the extent the insured did not manage to reduce the damage. If the insured acted intentionally the insurer has the right to deny any compensation. Moreover, in some legal systems 36 the policyholder and the insured are bound to comply with the instructions given by the insurer in order to contain the damage. However, the legal consequences where this duty has not been respected differ to some extent. These different rules may make it more burdensome for insurance companies to offer their products cross-border. For instance, the question whether also damages caused by gross negligence are covered influences the calculation of the price as well as the question to which extent the insured is 31 S. PEICL, Art. 9:101 point N1 32 the Netherlands (Art. 7:962 Civil Code) 33 Belgium (Art. 8 Insurance Code), France (Art Insurance Code), Luxembourg (Art. 14 Insurance Code) 34 Art.226, (3) Code for the Insurance 35 UK, s. PEICL, Art. 9:102, point N1 36 Austria (Section 62 (1) VersVG), Germany, (Section 82 (2) VVG), 9

10 obliged to mitigate a possible damage. So Dutch insurance companies wishing to offer their products to insured in Member States where gross negligence is normally covered would have to recalculate their prices or have to adapt contract terms. Questions on section 5: 1. To what extent are rules on causation and on mitigation of the loss mandatory? To what extents do the rules on causation or mitigation of the loss differ in national laws? Do you think that diverse rules create impediments to cross-border offer of services? If so, can you provide examples to illustrate your answer? 2. Would there be a need for adaptations of the standard terms and conditions for the same insurance product if it was offered in different Member States? 3. If relevant, what is the extent of the necessary adaptations? 4. If relevant, what would be the costs for adaptations in this area (including time and legal costs)? 5. Are B2B and B2C insurance contracts affected equally or are there differences? Could you give examples where they are affected equally and where they are not? 6. If there are impediments to cross-border offer of services would it matter whether those services are offered on the freedom of establishment basis or on freedom of services basis? 7. Does it make a difference whether a mandatory insurance is concerned? 6. DIRECT CLAIMS OF THE THIRD PARTY AND ASSIGNMENT In order to facilitate the enforcement of claims for the injured some Member States 37 recognise a right of the third party in general to directly claim the damage with the insurer although the details differ. In France the direct action depends in principle on the insurance contract. However, some specific rules apply to how such actions may be pursued and defended, making it to some extent autonomous from the underlying insurance contract. So the insurer may defend the direct action 37 For Spain s. Barlow Lyde&Gilbert, International Comparative Review of Liability Insurance Law, p. 19/20, Belgium (Art. 86 Insurance Code), France (Art. L Insurance Code), Luxembourg (Art. 89 Insurance Code) 10

11 by raising all the defenses that it would be entitled to raise against the insured, except the statutory two-year limitation period applying to the insured s action or any forfeiture of the policy based on the insured s conduct after the occurrence of the damage 38. The autonomy applies for instance in case of bankruptcy of the insured where the direct claim remains available to the third party or in cases where the insured himself benefits from legal or contractual immunity vis-à-vis the victim. In Spain, the insurer cannot raise against the third party any defenses that the insurer would have against the insurer, such as non-payment of premiums, but only objective defenses set out in the policy or implied by law provided that such exclusions related directly to the loss 39. The insurer may challenge the third party s claim if objectively it falls outside the scope of the insurance contract. However, the exclusion based on the bad faith of the insured is not valid against the third part. In other Member States, this third party right is only exceptionally granted in certain very limited cases. Under English Law 40 there is no common law right afforded to a third party against the insurer of the person who caused the injury. However, third parties are entitled where the conditions set out in the third Parties (Rights against Insurers) Act 1930 are met: The insured is insolvent; his liability has been ascertained either by judgment or arbitration award and the third party does not have more rights than the insured. The same rule applies if the insured dies bankrupt 41. German Law does not foresee third party rights against the insurer in general. However, these rights are granted in exceptional cases. In the event of compulsory insurance these cases concern motor insurance, the insolvency of the insured or unknown residence of the insured 42. The third party does not have more rights than the insured. Under the Dutch law 43 third parties only have direct rights of action against an insurer if they have suffered damages resulting from death or personal injury; there is no scope for direct action against insurers by injured parties suffering material or financial damages. There are also Member States which have found a solution in between: According to Italian law the third party normally does not have a direct claim against the insurer. However, the insurer may decide to compensate the third party directly and is obliged to do so if asked by the insured. In some areas, however, there is a direct 38 Barlow Lyde&Gilbert, International Comparative Review of Liability Insurance Law, p Barlow Lyde&Gilbert, International Comparative Review of Liability Insurance Law, p Barlow Lyde&Gilbert, International Comparative Review of Liability Insurance Law, p Birds, p Section 115 (1) VVG 43 Art. 7:954 Civil Code 11

12 claim against the insurer. In these cases the insurer may not raise any objection concerning the policy with the third party, except any defenses relating to the insurance cover as such 44. As a consequence the insurer has to pay to the third party in those countries where the third party has a direct claim. Only under restricted circumstances the payment to the policyholder will discharge the insurer. Where there are no direct claims of the third party, it could be in the interest of the insured to assign his or her rights against the insurance company to the injured third party. But the insured may also want for several reasons to assign his rights to another (fourth) person. However, insurers try to avoid a direct confrontation with a victim s claim. As a claim for indemnity against an insurer is part of the insured s assets Germany does not allow the exclusion of the assignments of rights to third parties, at least in standard terms and conditions. We are not aware whether and to what extent there are similar or different rules in other Member States and whether possible differences create problems. If an insurance company coming from Member State A in which there is normally no direct action wants to sell its product in Member State B where the injured third party has a direct action against the insurer the insurance company might face additional administrative costs. In particular additional costs could be caused by the fact that the third party does not speak the language of the insurance company and all the paper work has to be provided in that language. The contracts might need adaptations. Furthermore, the fact that the insurance company can only put forward a limited number of defenses against the third party may affect the calculation of the premium. All these facts might make it more difficult for insurance companies to offer their products cross-border. Questions on section 7: 1. To what extent are rules on direct claims mandatory? To what extents do the rules on direct claims of the injured differ in national laws? Do you think that diverse rules create impediments to cross-border offer of services? If so, can you provide examples to illustrate your answer? 2. To what extent do rules on assignment differ? Do you think that those differences create any problems for the cross-border offer of services? If so, can you provide examples to illustrate your answer? 44 Barlow Lyde&Gilbert, International Comparative Review of Liability Insurance Law p

13 3. Would there be a need for adaptations of the standard terms and conditions for the same insurance product if it was offered in different Member States? 4. If relevant, what is the extent of the necessary adaptations? 5. If relevant, what would be the costs for adaptations in this area (including time and legal costs)? 6. Are B2B and B2C insurance contracts affected equally or are there differences? Could you give examples where they are affected equally and where they are not? 8. If there are impediments to cross-border offer of services would it matter whether those services are offered on the freedom of establishment basis or on freedom of services basis? 9. Does it make a difference whether a mandatory insurance is concerned? 7. SUBROGATION The notion of subrogation can be found in one form or another in all European countries. Subrogation is the legal doctrine whereby one person takes over the rights or remedies of another against a third party. The reason for subrogation is that the insured shall not make profit of the insured event. Where the insured is compensated by the insurance company he or she should not keep his or her rights or remedies against a third party. However, the modalities of subrogation differ among the various legislations. There are countries 45 which foresee an automatic subrogation to the insurer by law. The subrogation is considered as an assignment effected by law. However in one Member State 46 the insurer has the option to decide whether it wants to refer to subrogation. It is also an acknowledged principle that subrogation may not be relied upon to the insured s detriment or against the insured 47. Member States 48 laws also exclude subrogation against certain third parties that are in a close relationship with the insured. The reason behind this rule is that the insurer may not recover from parties against whom the insured himself would not have brought a 45 France (Art. L Insurance Code), Germany (Section 86 VVG), the Netherlands (Art. 7:962 Civil Code), Spain, Italy 46 Spain 47 Germany, the Netherlands, Spain 48 PEICL, Art. 10:101, point N7. 13

14 claim and who might take de facto or de jure recourse against the insured. However details on this differ. From the point of view of liability insurance the right to subrogation is an important element since in practice it leads to possibilities for claims by an insurer against another insurer, where the former has the right to subrogation to a claim by a third injured party and the latter is the insurer in liability insurance against which that third injured party has a direct claim. For instance in a case where an employer has liability insurance for its employees and one of those while at work causes a fire that damages a house, the owner of the house will have direct claim for damages against the liability insurer. If that owner also has a property insurance that covers cases of fire he/she could also address the insurer for the property insurance to compensate the damages. Provided that the insurer for the property insurance does compensate the damages, it will have the right for subrogation in the same direct claim that the insured owner of the property had, being a third injured party, against the insurer in the liability insurance contract. We are not sure whether and to what extent differences of national rules could influence crossborder trade. Questions on section 7: 1. To what extents do the general rules on subrogation differ in national laws? Do you think that diverse rules on subrogation create impediments to cross-border offer of services? If so, can you provide examples to illustrate your answer? 2. Would there be a need for adaptations of the standard terms and conditions for the same insurance product if it was offered in different Member States? 3. If relevant, what is the extent of the necessary adaptations? 4. If relevant, what would be the costs for adaptations in this area (including time and legal costs)? 5. Are B2B and B2C insurance contracts affected equally or are there differences? Could you give examples where they are affected equally and where they are not? 6. If there are impediments to cross-border offer of services would it matter whether those services are offered on the freedom of establishment basis or on freedom of services basis? 7. Does it make a difference whether a mandatory insurance is concerned? 14

15 8. LIABILITY INSURANCE FOR LAWYERS Professional liability insurance for lawyers is intended to protect lawyers and law firms from damage claims made by their clients. It is a substantial condition for exercising the profession of a lawyer in most of the countries within the European Union but it is particularly important for lawyers practicing cross-border. Liability insurance for lawyers has a two-fold significance: on one hand it provides a necessary guarantee for the clients in case of an error or a fault committed by the lawyers and on the other hand it protects the lawyers by ensuring financial stability and preventing bankruptcy. It is becoming more crucial given the increased complexity of the law throughout the Member States, the high price of the interests at stake and the high amounts of claims. Moreover, there seems to be a trend in at least some of the Member States in Western Europe towards an increase of the claims both in numbers and in the amount of compensation sought 49. Practicing the lawyer's profession is regulated by two Directives: the Lawyers Services Directive 50 and the Lawyers Establishment Directive 51. The liability insurance for lawyers is not regulated in the former Directive, while the latter 52 does not go further than just acknowledging the right of the host Member State to require the lawyers either to take out professional indemnity insurance or to become members of a professional guarantee fund in accordance with the rules in that State. As there is no harmonisation on the liability insurance for lawyers at EU level, different approaches exist throughout the Member States. While in the vast majority of them such liability insurance is compulsory, there are a few countries where it is only voluntary - Greece and Latvia 53. It has to be noted further that the insurance schemes are also different in each Member State. In most countries the individual lawyers are insured, in others there is group insurance available or a combination of both exists. For instance, in Germany a lawyer is expected to take care of the liability insurance on his or her own and in Belgium it is the Bar that takes collective insurance for all its members and a registration with that Bar leads to an obligation to pay the premium p Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services; 51 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 52 Article 6.3 Lawyers' Establishment Directive 53 CCBE, SUMMARY of answers to the CCBE Professional Indemnity Insurance questionnaire ) 54 Ibid.; also CCBE, Conference held on Professional Indemnity Insurance for European lawyers, (2004), p

16 The cover of the liability insurance also varies. While it is generally understood that the insurance covers the damages caused by negligence, in different Member States the liability of the lawyers is focused either on the accuracy and diligence required or on the results. In some Member States lawyer's liability is limited to in-court activities only 55. In general the Member States do not have entirely identical rules on civil liability, on its limits and on exclusions of liability, moreover, the notions on what "negligence" or "fault" is might vary and the definition of "damages" is not necessarily the same 56. Furthermore in some Member States the liability insurance covers the costs for defence of a lawyer when a claim is initiated against him or her, while in other countries this is not the case 57. The difference in the coverage may in most of the cases result in a need to conclude additional insurance if going to offer services cross-border. For example, a lawyer coming from a country where the insurance covers only in-court activities will need to have additional insurance when practicing cross-border if in the host country a wider coverage is needed. The expenses for additional insurance caused by the different rules on coverage may make it more difficult or even prevent some lawyers from practicing abroad. In those Member States where the liability insurance for lawyers is compulsory the minimum amount covered can vary significantly. The margins for a single lawyer are from about Euro in Bulgaria up to almost Euro in England. Consequently, the costs a lawyer has to incur in order to obtain a compulsory insurance are also quite different: less than 100 per year in Estonia compared to over 2,000 in Denmark 58. Those differences could actually be even bigger if taken into account that the cover and the contract terms are also not identical. Furthermore, if the minimal coverage is too low, lawyers might be forced to buy additional insurance providing a more extensive cover, even on an ad hoc basis, in order to be able to provide services in certain branches of law or for certain clients. For instance, if a lawyer offers cross-border services to an multinational client the law of the host countries may require that the lawyer has liability insurance covering certain high amounts. Provided that the lawyer comes from a country where the amount covered is not as high, he/she will have to obtain additional insurance in order to satisfy the conditions of the client. Therefore, some studies indicate that the high costs for liability insurance are considered as preventive for entering a new country and offering services there 59. Costs for obtaining additional liability insurance in another 55 CCBE, SUMMARY of answers to the CCBE Professional Indemnity Insurance questionnaire, 2009, p.2 ) 56 CCBE, Conference held on Professional Indemnity Insurance for European lawyers, (2004), p P Ibid. 59 Ibid. p

17 Member State caused by different conditions for compulsory coverage are regarded as a serious barrier to providing legal services cross-border. The differences illustrated above constitute a barrier for the offering of legal services cross-border. One third (32%) of the lawyers that are practicing cross-border have experienced difficulties related to obtaining professional indemnity insurance for their cross-border activities and in many cases there was a need to have multiple or additional insurance in order to comply with the requirement of the host Member State 60. Apart from the nature of the liability insurance as a compulsory or a voluntary one and from different minimum amounts covered, there are several other reasons for the significant differences in offering of liability insurance in the Member States. National laws of each country have different branches and different rules and therefore a lawyer practicing cross-border needs to be an expert in the law of the host country. For the insurance companies that is a risk that some of them might be unwilling to cover even with a short-term contract or would only cover at a high price. Furthermore there are various requirements to evaluate the expertise of a lawyer and to enter the Bar in each Member State. As a consequence, the insurance companies cannot always easily assess the risk of covering the liability of a lawyer that has acquired his or her competence in another country and/or that has insufficient experience in the host country 61. Furthermore, the contract terms and conditions in the different Member States vary to some extent 62. While there are common approaches in that regard, the insurance contracts are not necessarily the same. As a consequence an insurance company that is planning to sell lawyers cross-border liability insurance may have to adapt its products to match the peculiarities in each country. In a more complicated scenario, a lawyer willing to practice not in one but in several foreign Member States will most likely have to buy not only one but several liability insurances which would comply with the requirements in each Member State. Differences in the scope of civil liability and the amount and scope of cover result in offering different insurance products throughout Member States. In most countries insurance policies are on a claims made basis, but in some (i.e. Germany, Austria, Bulgaria) they are rather on an occurrence basis. As is explained in detail in Section 3 above, the trigger for the main obligation of the insurer is a contract law issue which has a direct effect on the insurance product by defining its cover. In the particular case of liability insurance for lawyers the practical result of such a different approach might 60 table P CCBE, Conference held on Professional Indemnity Insurance for European lawyers, (2004), p

18 be the need for additional insurance when a lawyer from a country with a "claims-made" policy model goes practicing cross-border into a country with an "occurrence" policy model or vice-versa. In that scenario the additional insurance might be needed in order to ensure that there are no gaps in the cover with regard to both time and insured event as illustrated below: A lawyer from a MS with claims-made policies and having insurance valid until 31/12/2014 has to provide services to a client in another MS with occurrence made policies for the period 1/03/ /12/2014. Because of the occurrence based model of insurance in the host country that lawyer will need a cover for all events occurred during that period that may give raise to liability claims, even if those claims would be filed much later than 31/12/2014. It might well be that the lawyer commits a breach at the very end of 2014, just before returning to the country of origin. If the liability claim against him is not filed before 31/12/2014 it will, most likely, not be covered by the claims-made policy. Furthermore, if such an additional insurance is to satisfy a specific demand for an insurance product and at the same time not to overlap with the already existing one, it has to be tailor-made to the extent possible and that would mean additional investigation and risk assessment by the insurer and hence, higher costs for elaborating and offering such an insurance product which costs, if such a product is offered at all, will inevitably be reflected also in the price. From the prospective of a practicing lawyer the lack of, or the significant difficulties in obtaining, a tailor-made insurance product that would satisfy his/her particular demand may have strong dissuasive effect when deciding whether to offer legal services abroad. Differences in the products can be observed with regard to premium calculation as well. While in some insurance contracts it is possible to negotiate a reduction of the premium after a certain period where no claims have been filed against the lawyer, in other countries that is not the case 63. The possibility for the parties to negotiate an amendment, in that case a reduction, of the premium is a part of the rights and obligations of the parties to the insurance contract and, hence, is a matter of the contract law in each country. The different approaches in the Member States with regard to that option could make the cross-border offering of legal services more costly. For instance, a foreign lawyer might not be in a position to negotiate a more favourable premium in the host country despite his/her excellent credentials. Although it is not clear whether that difference is stemming from national contract laws or is a purely commercial issue, it obviously affects the insurance contracts terms and may create problems when obtaining insurance for cross-border activities. From 63 P

19 the prospective of the lawyers as customers that are using insurance product such a difference is certainly another issue that may make it more difficult for the lawyers to practice abroad. An important element of the liability insurance is the renewal of the insurance contract. A common standard on the automatic renewal of the liability insurance contract does not exist 64. That difference might create barriers for the cross-border offer of legal services and also for offering liability insurance for such services. A lawyer practicing in a country with an automatic renewal of the liability insurance and offering services in another country where no automatic renewal exists may find it more burdensome and more time-consuming to have to regularly address the insurance company with a request for renewal. As already indicated in Discussion Paper 4 Insurance Contract Law- General Part 2, an insurer from a country with an automatic renewal may need to adapt its administration, IT system and internal organisation, i.e. to incur additional costs if it wishes to offer liability insurance in another country where that insurance cannot be automatically renewed. Questions on section 8: 1. To what extents do the rules on liability insurance for lawyers differ in national laws? Do you think that diverse rules on liability insurance for lawyers impede lawyers to offer their services cross-border? If so, can you provide examples to illustrate your answer? 2. Are those differences illustrated above contract law related issues or they stem from other areas of law? 3. Would there be a need for adaptations of the standard terms and conditions for the same insurance product if it was offered in different Member States? 4. If relevant, what is the extent of the necessary adaptations? 5. If relevant, what would be the costs for adaptations in this area (including time and legal costs)? 6. Are the different national legal requirements for liability insurance in the Member States a reason for the insurers to refuse cross-border extension of cover for lawyers? 7. If there are impediments to cross-border offer of services by lawyers would it matter whether those services are offered on the freedom of establishment basis or on freedom of services 64 CCBE, Conference held on Professional Indemnity Insurance for European lawyers (2004), 19

20 basis? 8. Does it make a difference whether the liability insurance for lawyers is a mandatory one or a voluntary one? 9. LIABILITY INSURANCE IN THE CONSTRUCTION SECTOR Similarly to the liability insurance for lawyers, the liability insurance in the construction sector is intended to provide guarantees for the third parties that their claims for damages resulting from construction activities will be satisfied. It indirectly influences the development of the construction sector by either stimulating it when providing adequate products that would encourage construction business to expand and/or explore new materials and methods of work or hindering it when the lack of the insurance needed or the prohibitive prices create obstacles for that business. The latter case is even more obvious where foreign construction businesses are trying to enter a new market a compliance with the rules there, including the rules on the liability insurance, might be too costly or too burdensome and could result in refusal to enter that particular market. That is especially so for SMEs in the construction sector since the cost for obtaining the insurance needed in a foreign market might be higher than the expected profit. Yet, the liability insurance is an important element in that sector as far as it protects the construction businesses from certain financial risks. A study on the liability and insurance regimes in the construction sector throughout the Member States 65 reveals that there are several different models of liability insurance depending on what the basis for that insurance is. For example in France, Spain and Italy the obligation to have liability insurance stems from the legislation. Member States from Central and Eastern Europe generally have a compulsory liability insurance defined by legislation however with nuances: while a generalised compulsory insurance model exist in Bulgaria and Slovenia, in Czech Republic, Lithuania and Poland insurance is compulsory only for certain categories of businesses. In the United Kingdom and Ireland there are special rules on contractual guarantees. In Denmark, Finland, Sweden and the Netherlands the need for such an insurance comes largely from the contracts drawn up by professionals in the construction sector. Those different models are obviously based on different national laws including, but not limited to, different insurance contract laws. As a consequence, regardless of whether the liability insurance is

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