Solutions for issues relating to the level of compensation

A number of solutions to the problems highlighted herein have been identified following interviews conducted, and as provided in the different country reports.

 Do nothing (application of Rome II);

 Apply the lex damni for assessing the quantum46_;

 Generate common principles for the assessment of damages on which judges could

46_{Full Compensation Of Victims Of Cross-Border Road Traffic Accidents In The Eu: The Economic}

Impact Of Selected Options, Andrea Renda and Lorna Schrefler, Centre for European Policy Studies, Brussels, study requested by The European Parliament's Committee on Legal Affairs, 2007, p60.

rely47_;

 Provide coverage for injuries through the third-party liability insurance of the victim;

 Create a European compensation fund for victims of cross-border road traffic accidents48_;

 Create European guidelines that would provide a list of recognized losses;  Harmonise types of recognized losses and injury levels;

 Create European guidelines for the calculation of interest rates or discount rates in relation to awards;

 Develop tables that serve as guidelines for the assessment of injuries which could then be generalised, categorized, standardized and translated into all European languages so that when faced with a cross-border case, judges can apply the specifics of the Visiting Victim’s home country (local life expectancy, retirement age, employment perspectives, rate of return on investments and so on) but using tables that are based on the same parameters. These would serve as guidelines and leave judges enough discretion to make an appropriate decision in the circumstances of the case;

 Enable the Visiting Victim to claim directly from his/her insurer (as is the case for Comprehensive and Third Party insurance with extra guarantees);

 Increase the amount of information available to judges so that they have accurate information in their own language about compensation levels, practices and expectations in other countries. Accordingly they would be more able and likely to take into consideration many aspects of the Visiting Victim’s situation at home;  Enable the Visiting Victim to claim from his/her own third party insurer, if within 30

days of sending a request or claim to a guarantee fund or the third party’s insurance he or she has not received a reply;

 Enable the Visiting Victim to file a suit in his or her own country, if within 30 days of sending a request or claim to a guarantee fund or the third party’s insurance he or she has not received a reply;

 Impose on Visiting Victim’s insurer an obligation to provide information and assistance on how to proceed with a claim against a third party abroad;

 Provide better information for people in a cross-border situation or for European citizens who wish to travel to other Member States, such as a brochure that would

47_{Id, p60.} 48_{Id, p60.}

explain differences in damage awards between countries and the possibilities or options that exist to reduce or eliminate the risks of under compensation;

 Make driver’s insurance compulsory in all Member States or allow for a specified time-frame during which the insured may visit another Member state but still be covered by their insurance, provided that they notified their insurer. This time- frame could be agreed at the European level;

 Extend direct settlement insurance claims as applied inFrance, Italy, Germany, to cross-border claims;

 Apply restitutio in integrum so that under-compensation is avoided;

 Create a European body to give recommendations on the average sums of compensation for personal injury/damage to property (such as the Road Traffic Accident Damage Board “Liikennevahinkolautakunta” in Finland), to harmonize European compensation rules and centralize the information concerning these rules;

 Enable the Visiting Victim to argue before courts for the application of the law of his/her country of residence (lex conveniens);

 Provide coverage through first party insurance instead of third party meaning that the applicable law would be the proper law of the contract rather than the law of the place of the accident;

 Create a single market in insurance distribution49_{to unify insurance products;}

 Create a minimum award per type of injury table at the EU level (similar to Convention IDA50_{inFrance); and/or}

 Create a European Court for compensation issues only.

4 Assessment of solutions

A number of solutions are identified above to resolve issues related both to access to compensation and levels of compensation. These solutions include all but one of the five solutions assessed in study conducted in 2007 by Andrea Renda and Lorna Schrefler of the Centre for European Policy Studies and requested by The European Parliament's Committee

49_{An internal market strategy for services, Communication by the European Commission, CEA Note,}

June 2001, p6

50 _{Agreement between insurance companies on a scale of responsibility as a basis for compensation}

on Legal Affairs51_{. The solution that was not identified as a result of the analysis of the}

issues that arise in cross-border road traffic accidents is that which proposes the application by the courts of the “principle of ubiquity”. The reasons for this are outlined under Chapter 5. In the context of this study, if the principle were to be applied it would have to be redefined or its traditional interpretation extended. Further, it would have to be understood as a right granted to Victims rather than as a discretionary element enjoyed by judges as stated in the 2007 study. In any case, because this solution was proposed under the 2007 study, it was decided to assess it also assuming that in this context the principle of ubiquity refers to the application of a law by a court based on the location of the accident or the location of effects of the accident for the victim.

The solutions were assessed. Before being able to conclude whether or not to recommend a particular solution it was deemed appropriate to evaluate the extent of the problem of compensation for Visiting Victims of road traffic accidents in the EU. Solutions should be proportionate to the importance of the issue.

5 Road traffic accidents involving Visiting Victims

How many Visiting Victims are at risk of suffering from over or under compensation In the EU or from the effect of the expiry of a limitation period?