Effect of the Directives on the civil law

The EU’s five Motor Insurance Directives, now codified in European Parliament and Council Directive 2009/103/EC, demand that the users of motor vehicles insure against liability for death, personal injury and property damage. The purpose of the Directives is the furtherance of a single market whereby persons can travel freely, so that a victim is to be protected irrespective of the EU member state in which injuries have been inflicted, and to that end a policy must cover civil law liabilities in every EU member state. However, the various countries comprising the EU all have their own tort liability regimes, and the Directives have never sought to harmonise those regimes: they merely say that if there is liability, insurance must cover it. The relationship between tort liability and insurance coverage has nevertheless been examined in two recent cases referred to the European Court of Justice by the Portuguese courts, Santos v Companhia Europeia de Seguros SA Case C-484/09 and Lavrador v Companhia de Seguros Fidelidade-Mundial SA Case C-409/09.

Santos: the facts

Under the Portuguese Civil Code, the person with effective control of a motor vehicle is liable for damage resulting from its use. In the event of a collision between two vehicles when neither driver is at fault, liability is to be apportioned on the basis of the contribution of each of them to the accident. In the absence of evidence, the vehicles are to be regarded as having contributed equally to the damage.