European Directive
The 4th Motor Insurance Directive (Directive 2000/26/EC) was issued on 16 May 2000. This Directive (the provisions of which were transferred to Directive 2009/103/EC on 16 September 2009) obliges the EEA member states to introduce various provisions on the protection of injured parties who have suffered road traffic accidents abroad.
In accordance with Directive 2009/103/EC (or with the national legislation implementing this Directive), all insurance companies operating within the EEA are obliged to nominate claims representatives (CRs) in each of the other member states.
Victims of an accident abroad can thus file a claim in their country of residence via the CR of the relevant foreign liability insurer. The CR processes the claim according to the law of the country where the accident took place and in accordance with the instructions of the foreign insurer that nominated it.
In order to ensure that injured parties receive the information necessary to pursue their claims and can address themselves to the body responsible for settling their claims, member states have been required to set up information centres. These information centres shall provide injured parties with the address of the competent motor insurers and their claims representatives. Where necessary for the settlement of the claim, information centres shall also inform injured parties of the names and addresses of the owners of the vehicles of the parties responsible for the accident.
Directive 2009/103/EC obliges the member states to set up compensation bodies. These bodies provide injured parties with protection against loss or damage in the event of failure to settle the claim properly. If the insurer has not appointed a claims representative or if the representative fails to make an offer of compensation or to provide a reasoned reply to the injured party within a period of three months, the injured party may apply to the compensation body in his state of residence. If the conditions are met, the compensation body shall settle the claim in place of the missing or defaulting claims representative. This also applies if the insurer responsible cannot be identified within two months, either because the person responsible for the accident or his vehicle cannot be identified, or because there is no insurance.
The EEA member states were obliged to implement Directive 2000/26/EC by no later than 20 January 2003. Switzerland implemented this Directive independently and integrated the corresponding provisions into Art. 79a of the Swiss Road Traffic Act (SVG) with effect from 1 February 2003.
In the case of accidents occurring in Switzerland, Art. 79a to d SVG apply largely without restriction. Accordingly, the information centre provides injured parties with information on the regulatory body with which they can assert their claims. Swiss motor vehicle liability insurers must respond to the claims of injured parties within three months. Otherwise the compensation body will settle the case.
In relation to the EEA member states, Art. 79a to d SVG are not applicable. The Directive 2000/26/EC obliges the EEA member states to implement the provisions on the protection of visitors in relation to other member states. Switzerland therefore does not fall within the scope of these provisions.
In order to avoid that Swiss legislation only protects injured parties domiciled in the EEA but not injured parties domiciled in Switzerland (because Directive 2000/26/EC does not oblige insurers domiciled in the EEA to appoint claims representatives in Switzerland), the Swiss legislator has provided in Art. 79e SVG that 79a to d SVG are only applicable vis-à-vis another state if the state in question grants Switzerland reciprocal rights. Currently, only Liechtenstein grants Switzerland such a reciprocal right.
In order to guarantee the protection of visitors in relations with the EEA states despite these legal obstacles, the NBI concluded bilateral agreements under private law with its partner associations in the EEA, based on the competence to which it is entitled under Art. 76b para. 5 lit. b SVG.
In its capacity as a member of the EEA, Liechtenstein was also obliged to incorporate the provisions of Directive 2000/26/EC into its national law. There is full reciprocity between Liechtenstein and the other EEA states in the area of the protection of visitors.
