22 AOUT 2002. - Act respecting various provisions relating to mandatory liability insurance for self-propelled vehicles (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I. - Introductory provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
It transposes, inter alia, the provisions of Directive 2000/26/EC of the European Parliament and of the Council of 16 May 2000 concerning the approximation of the laws of the Member States relating to the insurance of civil liability resulting from the movement of motor vehicles and amending Council Directives 73/239/EEC and 88/357/EEC (Fourth Motor Vehicle Insurance Directive).
CHAPTER II. - Amendments to the Act of 21 November 1989 on compulsory liability insurance for self-propelled vehicles
Art. 2. Article 4, § 1^er, paragraph 2, of the Act of 21 November 1989 on compulsory liability insurance for self-propelled vehicles, the provisions of the second, third, fourth and fifth dashes are repealed.
Art. 3. Section 5 of the Act is repealed.
Art. 4. In section 9 of the Act, the following amendments are made:
1st paragraph 1^er is repealed;
2° in paragraph 3 of the Dutch text, the word "ook" is inserted between the words "kan" and "regels".
Art. 5. Article 10, § 1^er, paragraph 4, of the same law, the words "by Article 50 of the Act of 9 July 1975 on the control of insurance companies" are replaced by the words "by Article 19bis-11, § 1^er, 3°) and 4°)".
Art. 6. Chapter IV of the Act, including sections 12 to 19, is replaced by the following provisions:
“Chapter IV. - The action of the injured person against the insurer and the Claimant Representative
Section 1^re. - The Claims Representative
Art. 12. - § 1^er. Each insurance company approved pursuant to section 5 of the Act of 9 July 1975 on the control of insurance companies to cover the risks classified in section 10 of Schedule I to the Royal Decree of 22 February 1991 on the general regulation of the insurance companies, excluding the civil liability of the carrier, means, in each of the States of the Economic Area. European other than Belgium, a representative responsible for the settlement of claims.
The purpose of this representative is to process and resolve claims for compensation resulting from an accident in the territory of a country whose national office has acceded to the green card regime and involving a vehicle having its usual parking on the territory of a European Economic Area State, insured in civil liability by the company that has designated it. The representative responsible for the settlement of claims resides or is established in the State in which he is designated.
§ 2. The choice of the claims settlement representative is left to the appraisal of the insurance company.
§ 3. A claim settlement representative may act on behalf of one or more insurance companies.
§ 4. The Claims Settlement Representative gathers, with respect to claims, all the information necessary to deal with them and takes appropriate measures to negotiate the settlement. The requirement for the designation of a representative does not exclude the right of the injured person or his or her insurance company to directly engage in proceedings against the person who caused the accident or his or her insurance business.
§ 5. The Claims Representative has sufficient authority to represent the insurance company to the injured persons and to fully process their claims. It must be able to examine the case in the official languages of the injured person's state of residence.
§ 6. The designation of a claim settlement representative does not in itself constitute the opening of a branch within the meaning of Article 2, § 6, 3°, of the Act of 9 July 1975 on the control of insurance companies.
The Claimant Representative is not considered an establishment within the meaning of:
- Article 2, § 1^erthe Act of 9 July 1975 referred to above;
- the Convention concerning the Judiciary and Enforcement of Decisions in Civil and Commercial Matters, approved by the Law of 27 November 1996, Protocol No. 1 on Certain Problems of Jurisdiction, Procedure and Enforcement, Protocol No. 2 on the Uniform Interpretation of the Convention, Protocol No. 3 on the Application of Article 57, the Three Declarations, and the Final Act, made at Lugano on 16 September 1988, and the Regulation No.
Section 2. - Provisions relating to the introduction
and the continuation of the action
Art. 13. - § 1^er. Within a period of three months from the date on which the injured person applied for compensation, the insurance company of the person who caused the accident or the insurance company of the owner, owner or driver of the vehicle involved in the accident within the meaning of section 29bis, § 1^erParagraph 1^er, or their claim settlement representative is required to submit a motivated compensation offer where:
- the liability or application of section 29bis is not contested and
- the damage is not contested and has been quantified.
When the damage is not fully quantified but is quantifiable, the insurance company or its claims representative must present an offer in advance. The advance concerns the costs already exposed, the nature of the lesions, the pain sustained and the damage resulting from the periods of temporary incapacity already elapsed. The advance also focuses on the most likely damage to the future. It may, for the future, be limited to the most likely damage for the three months following the date on which the injured person submitted his claim for compensation.
§ 2. If no offer is submitted within the three-month period referred to in § 1^er, the insurer is entitled to the payment of a supplementary amount, calculated at the rate of the legal interest on the amount of the compensation or advance offered by the insurance company or granted by the judge to the injured person, for a period that runs on the day following the expiration of the three-month period referred to above, until the day after the day after the date of receipt of the offer by the injured person, or
The same penalty is applicable where the amount proposed in the offer referred to in § 1^er is not liquidated within thirty business days after acceptance of this offer by the injured person. In this case, the short period of the day following acceptance on the day after the amount was paid to the injured person.
The same penalty is applicable where the amount proposed in the offer referred to in § 1^er is clearly inadequate. The interest is calculated on the difference between the amount mentioned in the offer and the amount referred to in the judgment or in the order relating to that offer and passed in force of evidence. The short period of time after the expiration of the three-month period referred to above until the day of the judgment or judgment.
Art. 14. - § 1^er. Within a period of three months from the date on which the injured person applied for compensation, the insurance company of the person who caused the accident or the insurance company of the owner, owner or driver of the vehicle involved in the accident within the meaning of section 29bis, § 1^erParagraph 1^er, or their claims representative is required to provide a reasoned response to the elements invoked in the application when:
- the liability or application of section 29bis is contested or has not been clearly established,
or
- the damage is contested or not fully quantified or quantifiable.
§ 2. If no reasoned response is given within the three-month period referred to in § 1^er, the insurer is entitled to a lump sum payment of EUR 250 per day.
This amount is due from that of the following two days which will come first:
1°) the day the injured person recalled, by registered letter or by any other equivalent means, to the insurer the deadline referred to in § 1^er;
2°) the day the insurer was notified by the Joint Guarantee Fund pursuant to Article 19bis-13, § 1^er, paragraph 2, 1°).
This sum ceases to be due on the day after the receipt of the motivated response or the motivated offer of compensation by the injured person.
Art. 15. - For the purposes of the provisions of this Act, the injured person may quote the insurer in Belgium, either before the judge of the place where the act of the damage occurred, or before the judge of his own domicile, or before the judge of the insurer's seat.
Art. 16. - Without prejudice to the provisions of section 3 of this chapter, no invalidity, no exception or termination of the law or the insurance contract may be opposed by the insurer to the injured person.
Any insurance contract entered into for the performance of this Act shall be deemed to cover in full right with respect to the injured person all risks that must be insured.
Section 3. - Opposability to injured persons of the events or clauses ending the insurance contract, suspending the insurance contract or the guarantee that is the subject of it
Art. 17. - § 1^er. In the event of the transfer of ownership of the self-propelled vehicle, the provisions of the insurance contract which are intended to terminate, by the sole effect of the transfer, the insurance in respect of that vehicle, are enforceable to the injured person.
§ 2. By derogation from § 1^er, for sixteen days from the date of the transfer and provided that another insurance does not cover the same risk, the insurer of the self-propelled vehicle whose property has been transferred remains, however, held in respect of the injured person.
Pursuant to paragraph 1^er, the insurer is only liable to the injured person if the damage was caused by:
1° the vehicle whose property has been transferred, if it even circulates illegally under the registration mark it was carrying before the transfer;
2° the vehicle used to replace the vehicle whose property was transferred, if it even circulates illegally under the registration mark that the vehicle was carrying before the transfer.
Art. 18. - Article 17, § 2, paragraph 2, is not applicable to mopeds.
Art. 19. - Where a self-propelled vehicle is the subject of a civil or military requisition in property or rent, the public person in whose name the requisition took place shall, by this fact and for the duration of the requisition, cover only, according to the rules of Article 10, § 1^er, the liability to which the requisitioned vehicle may give rise. » .
Art. 7. It is inserted between chapter IV and chapter V of the Act, a chapter IVbis, which reads as follows:
"Chapter IVbis. - Rules relating to the repair of certain damage caused by self-propelled vehicles
Section 1^er. - General provisions
Art. 19bis-1. - The King agrees, under the conditions it determines, a national insurance office, referred to as the Belgian Bureau, which has the task of repairing, in accordance with the legislation relating to the compulsory insurance of liability for motor vehicles, the damage caused in Belgium by vehicles having their usual parking abroad.
The Belgian Bureau, approved under Article 79, § 1^er, of the Act of 9 July 1975 on the Control of Insurance Companies, remains approved until the King has implemented paragraph 1^er.
Art. 19bis-2. - The King, on the terms and conditions it determines, a Joint Guarantee Fund, referred to as the Fund, which has as its mission:
1°) provide the information referred to in section 2, to persons injured by traffic accidents
2°) repair damage caused by a self-propelled vehicle in the cases referred to in Section 3.
The Fund, approved under Article 79, § 2, of the Act of 9 July 1975 referred to above, remains approved until the King has implemented paragraph 1^er.
Art. 19bis-3. - The King approves the statutes and regulates the control of the activities of the Belgian Bureau and the Fund. It indicates the acts that must be published in the Belgian Monitor. If necessary, the King creates the Belgian Bureau or the Fund.
Art. 19bis-4. - Insurance companies that make compulsory insurance of civil liability in respect of self-propelled vehicles are jointly and severally required to make the necessary payments to the Belgian Bureau and the Fund for the fulfilment of their duties and for their operating expenses.
If the Belgian Bureau or the Fund are created by the King, a royal decree sets out annually the rule of calculation of payments to be made by insurance companies.
Art. 19bis-5. - Accreditation is withdrawn if the Belgian Bureau or the Fund do not act in accordance with laws, regulations or their statutes.
In this case, the King may take all measures to safeguard the rights of insurance takers, insured persons and injured persons.
The organizations remain subject to oversight during the liquidation of their operations.
The King appoints a special liquidator for this liquidation.
During this liquidation, section 19bis-4 remains applied.
Section 2. - Fund Information Mission
Art. 19bis-6. § 1^er. The Fund maintains a register containing the following data:
1°) with regard to vehicles having their usual parking on Belgian territory,
(a) the registration number, the date of the last registration and the duration of the validity of the registration in the vehicle registration directory;
(b) the name, first name or name of the holder of the registration mark and the address of the holder of the registration mark;
(c) the type of vehicle or registration;
(d) the mark, type, chassis number, control number, engine power or cylinder, maximum permissible mass and the date of the first vehicle release;
2°) the numbers of insurance policies covering the movement of vehicles referred to in 1°) for the risks referred to in Branch 10 of Schedule I to the Royal Decree of February 22, 1991 on the general regulation relating to the control of insurance companies, excluding the civil liability of the carrier, and when the period of validity of the policy expired, also the date on which insurance coverage ends;
3°) insurance companies covering the movement of vehicles for the risks referred to in branch 10 of Schedule I to the royal decree of February 22, 1991, excluding the civil liability of the carrier, and the representatives responsible for the settlement of claims designated by these insurance companies in accordance with Article 12, § 1^er;
4°) the list of vehicles with the exemption from the obligation to be covered by insurance in accordance with section 10;
(5) in respect of the vehicles referred to in 4°), the name and address of the authorities or bodies designated to compensate the injured persons;
6°) the name and address of the representative responsible for the settlement of claims designated in each of the European Economic Area States.
§ 2. Data referred to in § 1^er, shall be retained for a period of seven years after the vehicle registration or insurance contract has ended.
§ 3. The King shall determine, on the proposal of Ministers with economic affairs and the registration of vehicles in their competence, the data to be provided to the Fund by the direction of registration with the administration of road traffic and infrastructure, by insurance companies and by the authorities and bodies referred to in Article 10.
Art. 19bis-7.- The Fund may, on the basis of a mutual cooperation agreement, receive, assign or exchange data to foreign equivalent information organizations.
Art. 19bis-8. § 1^er. Any person involved in a road traffic accident as well as his or her right holders and any natural or legal person or body, as well as any institution or organization with a right of legal or conventional subrogation or a right in the event, may obtain from the Fund the following information regarding self-propelled vehicles involved in the accident:
1°) the name and address of the insurance company;
2°) the number of the insurance policy;
3°) the name and address of the representative responsible for the settlement of claims of this insurance company in the State of residence of the injured person;
(4) if the applicant warrants a legitimate interest, the name and address of the owner, if any of the usual driver or the declared holder of the vehicle;
(5) if it is a vehicle for which the exemption referred to in Article 10 or an equivalent provision of the right of another State of the European Economic Area has been used, the name and address of the authority or agency designated to settle the accidents that have occurred therein.
§ 2. The request for information is only admissible as long as:
1°) the application concerns self-propelled vehicles having their usual parking on the territory of a European Economic Area State;
(2) the accident occurred in the territory of a European Economic Area State or a third State whose national insurance office has acceded to the green card system;
3°) the application was sent to the Fund within seven years of the accident.
The King may determine the form and content of the request for information.
Art. 19bis-9. - Members of the Board of Directors of the Fund and persons authorized under a legal or statutory provision to attend meetings of the Board, as well as members of the Fund staff and persons who have previously exercised the above functions, shall be subject to professional secrecy and may not disclose to any person or authority the data they have been aware of in respect of the missions referred to in this chapter, except where they are called to give testimony in court.
Art. 19bis-10. - Article 19bis-9 does not prejudice:
1°) the ability to communicate, in a summary or aggregate form, data relating to insurance companies or insurance licensees provided that individual elements relating to insurance companies or insurance licensees cannot be identified;
2°) the possibility for the Fund, where it is unable to immediately identify the insurance company of a self-propelled vehicle, to inform the licensee of the registration mark on the insurance situation of its vehicle;
3°) the possibility, for the Fund, on the basis of a mutual cooperation agreement with a similar information body of another Member State of the European Union, to receive, assign or exchange data;
4°) the possibility, for the Fund, on the basis of a mutual cooperation agreement, with a similar information body of a third State, to receive, assign or exchange data, provided that the organization is subject to a professional secret equivalent to that referred to in 19bis-9.
Section 3. - Fund Compensation Mission
Art. 19bis-11. § 1^er. Any injured person may obtain compensation from the Fund for damage caused by a self-propelled vehicle:
1°) when the insurance company is declared bankrupt;
2°) where the insurance company debits compensation, having renounced the registration in Belgium or having been subject to a revocation or a decision to ban activity under section 71, § 1^er, paragraph 3 and § 2, of the Act of 9 July 1975 on the control of insurance companies, is in default of performing its obligations;
3°) where no insurance company is obligated to do so because of a fortuitous case exonerating the driver of the vehicle that caused the accident;
4°) where, in the event of theft, violence or recel, the civil liability to which the vehicle may give rise is not guaranteed, in accordance with the legally permitted exclusion;
(5) where, within a period of three months from the date on which it submitted an application for compensation to the vehicle insurance company whose participation in the traffic caused the accident or to its claims representative, the insurance company or its claims representative did not provide a reasoned response to the elements of the claim;
6°) where the insurance company has not designated a representative responsible for the settlement of claims;
(7) if the self-propelled vehicle that caused the accident cannot be identified; the Fund is substituted for the person responsible;
8°) where no insurance company is obliged to do so either because the insurance obligation has not been met, or because within two months after the accident, it is impossible to identify the insurance company.
§ 2. By derogation from 7°) of the previous paragraph, if several vehicles are involved in the accident and if it is not possible to determine which one of them caused the accident, the compensation of the injured person shall be apportioned, by equal shares, among insurers covering the civil liability of the drivers of these vehicles, with the exception of those whose liability is unduly incurred.
Art. 19bis-12. - Pursuant to Article 19bis-11, § 1^era claim for compensation may be filed with the Fund by the injured person. This request is admissible only if:
1°) the accident occurred in Belgian territory with respect to the cases referred to in Article 19bis-11, § 1^er1° to 4°);
2°) the accident occurred in the territory of a Member State of the European Union or a third State whose national office of insurers has acceded to the green card system, provided that the vehicle has its usual parking in one of the States of the European Economic Area, with respect to the cases referred to in 5°), 6°) and 8°) of Article 19bis-11, § 1^er;
3°) the accident occurred in the territory of a European Economic Area State, with respect to the cases referred to in 7°) of Article 19bis-11, § 1^er;
(4) the injured person who, in the case referred to in 6°) of Article 19bis-11, § 1^erdirectly addressed an application for compensation to the vehicle insurance company that caused the accident, did not receive a reasoned response within three months of the application;
5°) in the cases referred to in 5°) and 6° of Article 19bis-11, § 1^er, the injured person did not bring legal action directly against the insurance company.
Art. 19bis-13. § 1^er. In the cases referred to in 5°) and 6° of Article 19bis-11, § 1^er, the Fund intervenes within two months after the injured person has submitted a claim for compensation, but ceases to intervene if the insurance company or its claims representative has, within that time, given a reasoned response to the request.
In these same cases, the Fund shall immediately inform the following persons of the fact that it has received an application for compensation from the injured person and that it will respond, within two months of the application:
1°) the vehicle insurance company whose traffic caused the accident or the claims representative;
2°) the compensation agency of the member state of the establishment of the insurance company that has produced the contract;
3°) if identified, the person who caused the accident.
§ 2. The extent and conditions of granting the right to reparation are determined by the King.
§ 3. In the case referred to in Article 19bis-11, § 1^er, 7°), the King may limit the obligations of the Fund, to repair damage resulting from bodily injury.
Art. 19bis-14. § 1^er. In the cases provided for in Article 19bis-11, § 191, the Fund is subrogated, as it has repaired the damage, to the rights of the injured person against the responsible persons and possibly against their insurers.
§ 2. If he has compensated the injured person under section 19bis-11, § 1^er, 5°) or 6°), the Fund has the right to claim to the compensation agency of the State where the establishment of the insurance company that produced the contract is located, the refund of the amount paid as compensation.
§ 3. The Fund that has refunded a compensation agency of another State under a provision similar to Article 19bis-11, § 1^er, 5°) or 6°), of the law of that State, is subrogated in the rights of the injured person against the person who caused the accident or his insurance company, to the extent that the compensation body of the injured member State compensated him for the damage suffered.
§ 4. The Fund that compensated the injured person under section 19bis-11, § 1^er, 7°) or 8°), has a receivable:
1°) on the guarantee fund of the State of the European Economic Area where the vehicle has its usual parking if the insurance company cannot be identified;
2°) on the European Economic Area State Guarantee Fund where the accident occurred in the case of an unidentified vehicle;
3°) on the guarantee fund of the State of the European Economic Area where the accident occurred in the case of a vehicle of a third country.
Art. 19bis-15. - Where, pursuant to the law, a bond is provided or a bond is paid, the Fund shall, in respect of bail or bonding, be subrogated in the rights of the injured persons whom it has compensated for the damage caused by the vehicle. The same applies to the proceeds of the sale of the vehicle that has been assigned to repair the damage.
Subrogation cannot prejudice the rights that could be claimed personally by the injured persons who would be in cooperation with the Fund. These injured persons, excluding those who would be subrogated, exercise their rights in preference to the Fund.
However, in the cases provided for in Article 19bis-11, § 1^er, 1°) or 2°), the use of the Fund may only be exercised against the responsible person if the conditions under which such appeal is permitted by law or contract to the insurer himself. In addition, a deductible may be set by the King; in such cases, the Fund may appeal against the person responsible to the deductible.
Art. 19bis-16. - The judgment on a dispute arising out of an injury caused by a self-propelled vehicle is not enforceable to the Fund, the person responsible or the injured person, unless they have been present or called to the proceeding. However, the judgment is enforceable in the cases provided for in Article 19bis-11, § 1^er, 1°) or 2°), even if it has not been present or called to the proceeding.
When an insurance company has renounced the registration in Belgium or has been subject to a revocation of approval or a decision to ban activity under Article 71, § 1^er, paragraph 3 and § 2, of the Act of 9 July 1975 on the control of insurance companies, the Fund may intervene in any event in the actions directed against that enterprise or its insured persons.
The Fund may challenge the person responsible in the proceedings brought to it by the injured person.
Art. 19bis-17. - Where civil action in compensation for damage caused by a self-propelled vehicle is brought before the criminal court, the Fund may be challenged by the injured person and may also intervene voluntarily under the same conditions as if the action was brought before the civil court. Where, in the event of non-insurance, the Fund has made compensation for damage, the Fund may be a civil party against the person responsible.
The Fund and the responsible person may be represented in the same conditions as the civilly responsible party.
Art. 19bis-18. - In the event of a dispute between the Fund and the licensed or exempted insurance company, to the point of knowing who both must compensate the victim, the Fund shall compensate the victim in the first instance. If it is finally decided that the insurance company should have paid all or part of the compensation, it reimburses the Fund the amount of the allowance plus legal interests. These interests run from Fund payments to the victim. "
Art. 8. Article 35, as follows, is inserted in the same law:
The King may coordinate the provisions of this Act and the provisions that would have expressly or implicitly amended them at the time the coordination is established.
To this end, it may include:
1°) amend the order, numbering and, in general, the presentation of the provisions to be coordinated;
2°) amend the references contained in the provisions to be coordinated with a view to aligning them with the new numbering;
3°) amend the drafting of the provisions to be coordinated, with a view to ensuring their consistency and unifying the terminology, without prejudice to the principles enshrined in these provisions.
The coordination will bear the title determined by the King. "
CHAPTER III. - Amendments to the Act of 25 June 1992
on the land insurance contract
Art. 9. In Article 35 of the Law of 25 June 1992 on the Contract of Terrestrial Insurance, a § 3bis is inserted, as follows:
§ 3bis. The interruption or suspension of the limitation of the action of the injured person against an insured person results in the interruption or suspension of the limitation of his action against the insurer. The interruption or suspension of the limitation of the action of the injured person against the insurer results in the interruption or suspension of the limitation of the action against the insured person. "
Art. 10. Section 86 of the Act is supplemented by the following paragraph:
"If there are several injured persons and if the total of the compensation due exceeds the insured amount, the rights of the injured persons against the insurer are reduced proportionally to the maximum amount. However, the insurer who has paid in good faith to an injured person an amount greater than his or her share, because he or she did not know the existence of other claims, remains held to the other injured persons only in the amount insured. "
Art. 11. In Article 87, § 1^erParagraph 1^er, from the same law, the word "franchises," is inserted between the word "exceptions," and "nullities".
CHAPTER IV. - Amendments to the Act of 9 July 1975
on the control of insurance companies
Art. 12. Section 79 of the Act of 9 July 1975 on the Control of Insurance Companies, as amended by the Royal Decrees of 8 January 1993 and 12 August 1994, and section 80 of the Act, as amended by the Royal Decrees of 8 January 1993, 12 August 1994 and 19 February 1997, are repealed.
CHAPTER V. - Entry into force
Art. 13. This Act comes into force on 19 January 2003. By derogation from paragraph 1:
- Article 2 of this Act comes into force on the day of its publication to the Belgian Monitor;
- Article 19bis-11, § 2, of the Act of 21 November 1989 on the compulsory insurance of liability for self-propelled vehicles, comes into force on the day of the publication of this Act to the Belgian Monitor;
- in respect of accidents in the territory of another State of the European Economic Area or of a third State whose national office has acceded to the green card system, articles 19bis-11 to 19bis18 of the law of 21 November 1989 referred to above, come into force only on a date fixed by the King.
Promulgate this law, order whatever is covered by the state seal and published by the Belgian Monitor.
Given at Châteauneuf-de-Grasse, August 22, 2002.
ALBERT
By the King:
Minister of Economy,
Ch. PICQUE
Minister of Justice,
Mr. VERWILGHEN
Seal of the State Seal:
Minister of Justice,
Mr. VERWILGHEN
____
Note
(1) Regular session 2001-2002.
House of Representatives.
Parliamentary document:
Doc. 50-1716.
Number 1: Bill. - n^bones 2-4: Amendments. - Number five: Report. - No. 6: Text adopted by the commission. - No. 7: Text adopted in plenary and transmitted to the Senate.
Annales of the House of Representatives: Full Record of July 12, 2002.
Senate.
Parliamentary documents:
No. 2-1244. - No. 1: Project not referred to by the Senate.
.