Posted the: 2002-09-17 Numac: 2002011312 Ministry of foreign economic 22 August 2002. -Law concerning various provisions relating to compulsory insurance of liability for motor vehicles (1) ALBERT II, King of the Belgians, to all, present and to come, hi.
The Chambers have adopted and we endorse the following: chapter I:. -Disposition introductory Article 1. This Act regulates a matter referred to in article 78 of the Constitution.
It transposes inter alia provisions of directive 2000/26/EC of the European Parliament and of the Council of 16 May 2000 on the approximation of the laws of Member States relating to insurance against civil liability resulting from the use of motor vehicles and amending directives 73/239/EEC and 88/357/EEC of the Fourth Council directive on motor insurance).
CHAPTER II. -Amendments to the law of 21 November 1989 on compulsory insurance of liability for motor vehicles s. 2A article 4, § 1, paragraph 2, of the law of 21 November 1989 on compulsory insurance of liability for motor vehicles, the provisions in the second, third, fourth and fifth indents are repealed.
S. 3. article 5 of the Act is repealed.
S. 4 A section 9 of the Act, the following changes are made: 1 ° 1st paragraph is repealed;
2 ° to paragraph 3 of the Dutch text, the word "ook" is inserted between the words "kan" and "regels".
S. 5 A article 10, § 1, paragraph 4, of the Act, the words "by article 50 of the law of 9 July 1975 on the supervision of insurance companies" are replaced by the words "(par l'article 19bis-11, § 1er, 3°) and 4 °)".
S. 6. Chapter IV of the Act, including articles 12 to 19, is replaced by the following: "chapter IV. -Of the action of the person aggrieved against the insurer and the representative of the claims Section 1. -The representative of the claims art. 12 - § 1. Each insurance undertaking authorised in accordance with article 5 of the law of 9 July 1975 on the control of insurance undertakings covering the risks classified in class 10 of Schedule I to the royal decree of 22 February 1991 on the general regulation for control of insurance undertakings, excluding the civil liability of the carrier, means, in each of the States of the economic area. European other than Belgium, a representative of the claims.
This representative is to treat and settle claims arising from an accident in the territory of a country whose national Office joined the green card system and involving a vehicle normally based in the territory of a State of the European economic area, in motor vehicle civil liability by the undertaking which appointed him. The claims representative resides or is established in the State where he is appointed.
§ 2. The choice of the claims representative is left to the discretion of the insurance undertaking.
§ 3. The claims representative may act on behalf of one or several insurance undertakings.
4. About insurance claims, the claims representative brings together all the information necessary to be able to treat them and takes appropriate measures to negotiate the settlement. The requirement for the appointment of a representative shall not exclude the right of the injured party or his insurance undertaking to engage directly the proceedings against the person who caused the accident or his insurance undertaking.
§ 5. The claims representative has sufficient powers to represent the insurance with injured persons undertaking and to fully treat their claims for compensation. It must be able to examine the case in the official languages of the State of residence of the injured party.
6. The appointment of a representative of the claims is not in itself the opening of a branch within the meaning of article 2, § 6, 3 ° of the Act of 9 July 1975 on the supervision of insurance companies.
The claims representative is not considered an establishment within the meaning of:-article 2, § 1, of the Act of 9 July 1975;
-the Convention on jurisdiction and enforcement of judgments in civil and commercial matters, approved by the law of 27 November 1996, Protocol No. 1 on some problems of jurisdiction, procedure and performance, Protocol n ° 2 on the uniform interpretation of the Convention, Protocol 3 on the application of article 57, the three statements, and the final act done at Lugano on 16 September 1988, and Regulation (EC) No 44/2001 of the Council of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
Section 2. -Provisions relating to the introduction and continuation of action art. 13 - § 1. Within a period of three months from the date when the injured party presented his claim for compensation, the insurance undertaking of the person who caused the accident or the insurance undertaking of the owner, the owner or driver of the vehicle involved in the accident within the meaning of article 29 bis, § 1, paragraph 1, or their responsible for the claims representative is required to make a reasoned offer of compensation when : - the responsibility or the application of article 29 bis is not contested and - damage is not disputed and have been quantified.
When the damage is not fully quantified but is quantifiable, the insurance undertaking or its representative for the settlement of claims must present an offer in advance. Advance covers the costs already incurred, the nature of injuries, endured pain and the harm of already past periods of temporary disability. The advance also focuses on the likely prejudice to the future. For the future, it may be limited to the most likely injury for three months of the date when the injured party presented its claim.
§ 2. If no offer is made within the period of three months referred to the § 1, the insurer is required to right to the payment of an additional amount, calculated at the rate of legal interest on the amount of compensation or advance offered by the insurance undertaking or awarded by the Court to the injured person, for a period running from the day following the expiry of the period of three months supra until the next day of the receipt of the offer by the injured person or, where appropriate, until the day the judgment or the judgment by which compensation is granted is cast in force of res judicata.
The same penalty is applicable when the amount proposed in the offer referred to the § 1 is not paid within thirty days following the acceptance of this offer by the injured person. In this case, the short period of the day following acceptance to the day following the day when the sum was paid to the injured person.
The same penalty is applicable when the amount proposed in the offer referred to the § 1 is manifestly inadequate. The interest is calculated on the difference between the amount mentioned in the offer and the amount mentioned in the judgment or ruling on this offer and passed into res judicata. The short period of the day after the expiry of the abovementioned period of three months until the day of judgment or the judgment.
S. 14 - § 1. Within a period of three months from the date when the injured party presented his claim for compensation, the insurance undertaking of the person who caused the accident or the insurance undertaking of the owner, the owner or driver of the vehicle involved in the accident within the meaning of article 29 bis, § 1, paragraph 1, or their the claims representative is required to give a reasoned reply to the points put forward in the application when : - the responsibility or the application of article 29bis is disputed or has not been clearly established, or that - the damage is contested or is not fully quantified or quantifiable.
§ 2. If no reasoned answer is given within the period of three months referred to the § 1, the insurer is of right in the payment of a lump sum of EUR 250 per day.
This amount is due from that of two days which will come in first place: 1 °) the day where the injured person was reminded, by registered letter or any other equivalent means, the insurer the expiry of the period referred to the § 1;
(2 °) the day where the insurer was warned by the joint guarantee fund pursuant to article 19A-13, § 1, paragraph 2, 1 °).
This sum ceases to be due on the day following the day of receipt of the reasoned reply or the reasoned offer of compensation by the injured person.
15. - for the purposes of the provisions of this Act, the injured party can cite the insurer in Belgium or to the judge of the place where the operative of the damage, or before judge her own home, either to judge the head of the insurer.
S. 16. - without prejudice to the provisions of section 3 of this chapter, no void, no exception or forfeiture of the Act or the insurance contract may be opposed by the insurer to the injured person.
Any insurance contract entered into for the enforcement of this Act shall be deemed to cover of right,
with respect to the injured person, all the risks that must be assured.
Section 3. -From effectiveness to persons aggrieved events or clauses putting an end to the insurance contract, suspending it or guarantee that is the article subject 17 - § 1.
In case of transfer of ownership of the motor vehicle, the provisions of the contract of insurance which are designed to put an end, by the only effect of the transfer, insurance on this vehicle, are prejudicial to the injured person.
§ 2. By way of derogation to the § 1, for sixteen days from the date of the transfer and provided that one other insurance does cover not the same risk, the insurer of the motor vehicle whose ownership was transferred remains however held with respect to the injured person.
In application of paragraph 1, the insurer is liable towards the injured party unless the damage was caused by: 1 ° the vehicle to which the property has been transferred, if it circulates even illegally under the registration mark which he wore before the transfer;
2 ° the vehicle used in replacing the one whose property has been transferred, if it circulates even illegally under the registration marks that he wore before the transfer.
18 - article 17, § 2, paragraph 2, is not applicable to mopeds.
S. 19 - when a motor vehicle is a measure of requisition civilian or military property or rental, the public person on whose behalf the requisition took place covers alone, by this fact and for the duration of the support, according to the rules of article 10, § 1, the liability to which the commandeered vehicle may give rise. » .
S. 7 II is inserted between chapter IV and chapter V of the Act, a chapter IVbis reading as follows: 'chapter IVA. -Rules relating to repair some of the damage caused by motor vehicles 1 Section. -Provisions general article 19A-1.-the King approved the conditions it determines, a bureau national insurance, hereinafter referred to as the Belgian Bureau, which mission is to repair damage in Belgium by vehicles normally abroad in accordance with the legislation on insurance of liability for motor vehicles,.
Belgian, registered office pursuant to article 79, § 1 of the law of 9 July 1975 on the control of authorized both home insurance companies that the King has not implemented the 1st paragraph.
S. 19bis-2.-the King approved the conditions it determines, a common guarantee fund, hereinafter referred to as the Fund, which mission is to: 1 °) to provide to persons injured by traffic accidents the information referred to in section 2, 2 °) to repair damage caused by a motor vehicle in the cases cited in Section 3.
The Fund, approved in accordance with article 79, § 2 of the law of 9 July 1975, supra, remains approved as long as the King has not implemented the 1st paragraph.
S. 19A-3.-the King approves the statutes and regulates activities of the Belgian Bureau and the Fund control. (II) indicate the acts which must be the subject of a publication in the Moniteur belge. If necessary, the King creates the Belgian Bureau or the Fund.
S. 19A-4.-insurance companies engaged in compulsory insurance of civil liability for motor vehicles are jointly and severally obliged to payments to Belgian Office and the funds necessary for the fulfilment of their missions and to support their operating costs.
If the Belgian Bureau or the funds are created by the King, a royal decree shall fix each year the rule of calculation of payments by insurance companies.
S. 19A-5.-the approval shall be withdrawn if the Belgian Bureau or the Fund do not act in accordance with the laws, regulations or statutes.
In this case, the King may take all measures necessary to safeguard the rights of policyholders, insured persons and injured persons.
Agencies remain subject to control during the duration of the liquidation of their operations.
The King appoints a special liquidator responsible for liquidation.
During this liquidation article 19A-4 continue to apply.
Section 2. -Fact-finding of the Art Fund. 19A-6.-§ 1. The Fund shall maintain a register containing the following information: 1 °) in respect of vehicles normally based in Belgium, has) registration number, the date of the last registration, and the duration of the validity of the registration in the directory service vehicles;
b) the name, first name or the name of the holder of the registration mark and address of the holder of the registration mark;
(c) the type of vehicle or registration;
(d) the brand name, the type, the chassis number, control number, the power or the cylinder capacity of the engine, the maximum allowable and the date of the first entry into service of the vehicle;
2 °) the numbers of the insurance policies covering the use of the vehicles referred to in 1 °) for risks listed in class 10 of Schedule I to order royal February 22, 1991 on the general regulation on the control of insurance undertakings, excluding the civil liability of the carrier, and where the period of validity of the policy has expired, also the date at which the insurance coverage ends.
3 °) insurance undertakings covering the use of vehicles for the mentioned risks in class 10 of Schedule I to the royal decree of 22 February 1991 supra, excluding the civil liability of the carrier, and the representatives of the claims identified by these companies of insurance in accordance with article 12, § 1;
4 °) the list of vehicles benefiting from the derogation from the requirement to be covered by insurance in accordance with article 10;
(5 °) as regards vehicles referred to 4 °), the name and address of the authorities or bodies designated to compensate injured parties;
6 °) the name and address of the claims representative appointed in each of the States of the European economic area.
§ 2. The data referred to the § 1, must be kept for a period of seven years after the registration of the vehicle or the insurance contract took end. § 3. The King determines, on the proposal of the Ministers with Economic Affairs and registration of vehicles in their skills, the data to be provided to the Fund by the Directorate of registration of road traffic and infrastructure administrations, by the insurance and undertakings by the authorities and bodies referred to in article 10.
S. 19A-7.-on the basis of a reciprocal collaboration agreement, the Fund may receive, transfer or exchange of data to foreign equivalent information agencies.
S. 19A-8.-§ 1.
Any person involved in an accident of traffic as well as his successors and any natural or legal person as well as any institution or organization with a right of legal or contractual subrogation or own this accident right, can obtain from the Fund the following information concerning motor vehicles involved in the accident: 1 °) the name and address of the insurance undertaking;
2 °) the number of the insurance policy;
3 °) the name and address of the representative of the claims of the insurance undertaking in the State of residence of the injured;
4 °) if the applicant can demonstrate a legitimate interest, the name and address of the owner, if any of the usual driver or the registered keeper of the vehicle;
5 °) if it is a vehicle for which he made use of the exemption referred to in article 10 or equivalent law of another State of the European economic area, the name and address of the authority or the body designated to deal with accidents that have occurred.
2. The request for information is admissible only in so far as: 1 °) the application concerns motor vehicles normally based in the territory of a State of the European economic area;
2 °) the accident has produced on European territory of a State of the EEA or of a third State whose national insurance bureau joined the system green card;
3 °) the request was addressed to the Fund within a period of seven years after the accident.
The King may determine the form and content of the request for information.
S. 19A-9.-the members of the Board of Trustees of the Fund so that persons entitled under any legal or statutory, to attend the meetings of this Council, members of the Fund's staff and persons exercised in the past the above functions are subject to professional secrecy and shall not disclose to any person or authority whether the data which they have had knowledge because the missions referred to in this chapter , except in the case where they are called to testify in court in criminal matters.
S. 19bis-10.-article 19A-9 does not prejudice to: 1 °) the ability to communicate, summary or aggregate data to insurance companies or insurance policyholders in the form provided that the individual elements relating to insurance companies or insurance policyholders can be identified;
2 °) the possibility for the Fund, when it is unable to immediately identify the insurance undertaking of a self-propelled vehicle, enquire with the holder of the registration marks for the
situation for insurance of his vehicle;
3 °) the possibility for the Fund, based on an agreement of mutual cooperation with an agency of another State member of the European Union, to receive similar information, transfer or exchange of data;
4 °) the possibility for the Fund, based on an agreement of mutual cooperation, with a body similar to a third State information, to receive, transfer or Exchange, provided that this organization be subject to an obligation of professional secrecy equivalent to that referred to in article 19A-9.
Section 3. -Mission of compensation of the Art Fund. 19A-11.-§ 1. Any aggrieved person may obtain fund the repair of damage caused by a motor vehicle: 1 °) where the insurance undertaking is declared bankrupt;
2 °) when the debtor benefits insurance business, having given up on accreditation in Belgium or are subject to a revocation or a prohibition decision of activity in application of article 71, § 1, paragraph 3, and § 2, of the Act of 9 July 1975 on the control of insurance undertakings, is failure to perform its obligations;
3 °) when no insurance company is obliged to repair due to a fortuitous said relieving the driver of the vehicle that caused the accident.
4 °) when, in case of theft, violence or possession of stolen property, civil liability to which the vehicle may give rise is not assured in accordance with the exclusion legally permitted;
5 °) when, within a period of three months from the date at which she presented to the insurance undertaking of the vehicle whose participation in traffic caused the accident or to its claims representative claim, the insurance undertaking or its representative for the settlement of claims did not of reasoned reply to the points of the application;
6 °) where the insurance undertaking has not appointed a representative responsible for the settlement of claims;
7 °) if the motor vehicle that caused the accident cannot be identified; in this case, the Fund is substituted for the person in charge;
8 °) when no insurance company is obliged to repair said that the insurance obligation has been breached either because, in the two months after the accident, it is impossible to identify the insurance undertaking.
§ 2. 7 ° notwithstanding) the preceding paragraph, if several vehicles were involved in the accident and if it is not possible to determine which of these caused the accident, the injured person compensation is distributed equally among insurers covering the liability of drivers of such vehicles, with the exception of those whose responsibility is undoubtedly not engaged.
19A-12.-pursuant to section 19A-11, § 1, a claim for compensation may be submitted to the Fund by the injured person. This application is admissible only if: 1 °) the accident occurred on the Belgian territory, with respect to the cases referred to in article 19A-11, § 1, 1 °) at 4 °);
2 °) the accident occurred on the territory of a Member State of the European Union or of a third State whose national insurers joined the green card system, provided that the vehicle is normally based in one of the States of the European economic area, with regard to the cases referred to the 5 °), 6 °) and 8 °) article 19A-11 , § 1;
(3 °) the accident occurred on the territory of a European economic area State, with regard to the cases referred to the 7th) article 19A-11, § 1;
(4 °) the person aggrieved who, in the case referred to in the 6th) article 19A-11, § 1, sent directly a claim for compensation to the insurance undertaking of the vehicle which caused the accident, did not receive a reasoned reply within a period of three months from the submission of the application;
5 °) in the cases referred to the 5 °) and 6 °) article 19A-11, § 1, the person aggrieved has not introduced to legal action directly against the insurance undertaking.
19A-13.-§ 1. (In the cases referred to the 5 °) and 6 °) article 19A-11, § 1, the Fund takes action within a period of two months after the injured person has submitted a claim for compensation, but ceases to intervene if the insurance undertaking or its representative for the settlement of claims has, within that period, given a reasoned reply scheduled.
In these cases, the Fund shall immediately inform the following persons that he has received a claim for compensation on the part of the injured party and that it will respond within a period of two months after submission of this application: 1 °) the insurance undertaking of the vehicle whose traffic has caused the accident or the representative responsible for the settlement of claims;
2 °) the compensation body of the Member State of establishment of the insurance company which issued the policy;
3 °) if she is identified, the person who caused the accident.
§ 2. The scope and conditions for the granting of the right to reparation shall be determined by the King.
§ 3. In the case referred to in article 19A-11, § 1, 7 °), the King may limit the obligations of the Fund, to compensation for damages resulting from bodily injury.
S. 19A-14.-§ 1.
In the cases provided for in article 19A-11, § 191, the Fund is subrogated, insofar as it has repaired the damage, to the rights of the injured party against the persons responsible for and possibly against their insurers.
§ 2. If it has compensated the injured party in accordance with article 19A-11, § 1, 5 °) or 6 °), the Fund has the right to claim from the compensation body in the State where is located the establishment of the insurance company which issued the policy, reimbursement of the sum paid by way of compensation.
§ 3. The Fund that repaid a compensation body of another State pursuant to a provision similar to article 19A-11, § 1, 5 °) or 6 °), the law of that State, is subrogated to the rights of the injured party against the person who caused the accident or his insurance undertaking, to the extent where the compensation body of the Member State of residence of the injured it was compensation for the harm suffered.
§ 4. The Fund, which has compensated the injured party in accordance with article 19A-11, § 1, 7 °) or 8 °), has a claim: 1 °) on the guarantee fund of the European economic area State where the vehicle is normally based if the insurance undertaking cannot be identified;
2 °) on the guarantee fund of the State of the European economic area where the accident took place in the case of a vehicle not identified;
3 °) on the guarantee fund of the European economic area State where the accident took place in the case of a vehicle of a third country.
S. 19A-15.-when, pursuant to the Act, a security deposit is provided or a bond is paid, the Fund is against the surety or suretyship, subrogated to the rights of the injured people it has compensated for the damage caused by the vehicle.
II is similarly on the proceeds from the sale of the vehicle which has been allocated to the repair of the damage.
Subrogation may not prejudicially affect the rights that might make personally aggrieved individuals who would be in competition with the Fund. These injured persons, excluding those who them would be subrogées, exercise their rights by preference to the Fund.
However, in the cases provided for in article 19A-11, § 1, 1 °) or 2 °), the use of the Fund cannot be exercised against the person responsible if are fulfilled the conditions under which such appeal is permitted, by law or the contract, the insurer itself. In addition, a franchise can be determined by the King; in this case, the Fund can a remedy against the person responsible for this franchise competition.
S. 19A-16.-judgment on a dispute born of an injury caused by a motor vehicle is opposable to the Fund, the person responsible for or injured, whether they were present or called to the instance. However, the judgment is enforceable against the Fund in the cases provided for in article 19A-11, § 1, 1 °) or 2 °), even though he was not present or named in the proceeding.
When an insurance company has waived the approval in Belgium or is the subject of a measure of revocation of approval or a decision of prohibition of activity in application of article 71, § 1, paragraph 3, and § 2, of the Act of 9 July 1975 on the control of insurance undertakings, the Fund may intervene in any case in the actions against this company or its policyholders.
The Fund can put the person in question in the trial which it is brought by the injured party.
19A-17.-when the civil action for compensation for damage caused by a motor vehicle is brought before the Criminal Court, the Fund can be questioned by the aggrieved person and can also intervene voluntarily under the same conditions as if the action was brought before the civil court. When, in the case of non-insurance, he proceeded to repair the damage, the Fund can stand as a civil party against the person responsible.
The Fund and the person in charge may be represented in the same conditions as the civilly liable party.
S. 19A-18.-in case of dispute between the Fund and the company of insurance approved or exempted from approval, to whether which of the two should compensate the victim, the Fund compensates it in a first
time. If it is finally decided that the insurance company should have paid all or part of the compensation, it shall reimburse the Fund the amount of the indemnity plus statutory interest. These interests run from payments from the Fund to the victim. ».
S. 8. an article 35, as follows shall be inserted in the Act: the King can coordinate the provisions of this Act and the provisions which have expressly or implicitly amended them at the time where the coordination will be established.
To this end, II may: 1 °) change the order, the numbering and, in general, the presentation of the provisions to coordinate;
2 °) modify the references which would be contained in the provisions to coordinate, to put them in line with the new numbering;
3 °) modify the drafting of provisions to coordinate in order to ensure consistency and to unify the terminology, without that it can be worn against the principles embodied in these provisions.
Coordination will be the heading determined by the King. ».
CHAPTER III. -Amendments to the law of 25 June 1992 on terrestrial insurance art.
9A article 35 of the law of 25 June 1992 on terrestrial insurance contract, it is inserted a § 3a, as follows: "§ 3A. '. The interruption or suspension of the prescription of the action of the injured party against an insured results in the interruption or suspension of the prescription of the action against the insurer. Interruption or suspension of the prescription of the action of the injured party against the insurer causes the interruption or suspension of the prescription of the action against the insured. ».
S. 10. article 86 of the Act is supplemented by the following subparagraph: "If there are several injured and if the total of.» claims due exceeds the sum insured, the rights of injured parties against the insurer are reduced proportionally up this amount. However, the insurer that contributed in good faith to a person aggrieved a sum greater than the share due to him, because he was unaware of the existence of other claims, remains liable towards other injured parties only to the extent of the rest of the sum insured. ».
S. 11. in article 87 § 1, paragraph 1, of the Act, the word "franchises", is inserted between the word "exceptions", and "nullity".
CHAPTER IV. -Amendments to the law of 9 July 1975 on s. insurance companies control 12. article 79 of the Act of 9 July 1975 on the control of insurance undertakings, as amended by the Royal Decrees of 8 January 1993 and August 12, 1994, and section 80 of the Act, amended by the decrees of 8 January 1993, 12 August 1994 and 19 February 1997, are hereby repealed.
Chapter V. - Entry into force art.
13. this Act comes into force on January 19, 2003. By way of derogation from the first paragraph:-section 2 of this Act enter into force the day of its publication in the Moniteur belge;
-article 19A-11, § 2, of the Act of 21 November 1989 on compulsory insurance of liability for motor vehicles, comes into force the day of the publication of this Act in the Moniteur belge.
-with regard to accidents occurring in the European territory of another Member State of the EEA or of a third State whose national office joined the green card system, articles 19A-11 to 19bis18 of the Act on November 21, 1989, take however effect at a date determined by the King.
Promulgate this Act, order what is under the seal of the State and published by le Moniteur.
Given at Chateauneuf-de-Grasse, August 22, 2002.
ALBERT by the King: the Minister of the economy, c.
PICQUÉ the Minister of Justice, Mr. VERWILGHEN sealed with the seal of the State: the Minister of Justice, Mr. VERWILGHEN _ Note (1) 2001-2002 regular Session.
House of representatives.
Parliamentary document: Doc.
50-1716 No. 1: Bill. -our 2-4: amendments. -No 5: report.
-No 6: Text adopted by the commission. -No 7: Text adopted in plenary meeting and transmitted to the Senate.
Annals of the House of representatives: complete record of 12 July 2002.
Parliamentary papers: N ° 2 - 1244. -No. 1: Project not referred by the Senate.