Legal matters NGF
Legislation NGF
The insurance institutions licensed to operate motor vehicle liability insurance in Switzerland jointly form and operate the National Guarantee Fund. The NGF is an association and has its own legal personality. Articles 76, 76a and 76b of the Road Traffic Act (SVG) regulate the tasks and financing of the National Guarantee Fund.
The tasks of the Liechtenstein National Guarantee Fund are fulfilled by the Swiss NGF.
The statutory duties of the NGF consist of covering damage caused in Switzerland and Liechtenstein by unidentified or uninsured motor vehicles and trailers. According to the SVG, insurance must be compulsory (Art. 76 para. 2 lit. a no. 1 SVG).
Liability for damage caused by cyclists or users of vehicle-like equipment is also covered. This is subject to the condition that the person causing the damage cannot be identified or the damage is not covered by the person causing the damage, by liability insurance, by a responsible person or by other insurance (Art. 76 para. 3 lit. a no. 2 SVG).
If a bankrupt motor vehicle liability insurer is unable to pay for damages, the NGF shall pay the entitled persons that part of the claims for which the bankruptcy administration has issued a loss certificate in return for the loss certificate (Art. 76 Para. 4 lit. a SVG).
The NGF is liable for cover in the restructuring proceedings of a motor vehicle liability insurer if FINMA provides for a reduction in claims payments. The NGF covers the difference between the total claims payments owed by the responsible insurer and the benefits owed after the reduction (Art. 76 para. 4 lit. b SVG in conjunction with Art. 54a VVV).
Managing insurer and registered office
The NGF can entrust its members or third parties with the fulfillment of the tasks incumbent upon it and appoint a managing insurer. Since the NGF was founded, the operational tasks of the association have been carried out by Zurich Insurance Company Ltd.
The NGF is headquartered at the managing insurer Zurich Insurance Company Ltd in Zurich. It has branch offices in Lugano and Lausanne.
Articles of Association
The composition, duties and powers of the bodies of the Swiss National Guarantee Fund are set out in the NGF Articles of Association. The bodies are the General Meeting of Members, the Executive Committee and the Auditors. The auditors are elected by the General Meeting of Members for a period of one year. Auditors who are supervised in accordance with the provisions of the Auditor Supervision Act (RAG) may be elected as auditors.
Art. 1 para. 1 of the NGF Articles of Association stipulates that the NGF shall take the legal form of an association in accordance with Art. 60 et seq. of the Swiss Civil Code (ZGB).
According to Art. 60 para. 2 of the Swiss Civil Code, the Articles of Association must be drawn up in writing and provide information about the purpose of the association, its resources and its organization. Art. 55 para. 1 of the Traffic Insurance Ordinance (VVV) stipulates that the NGF’s Articles of Association and any amendments thereto must be approved by the NGF’s supervisory authority, the Federal Roads Office (FEDRO).
The Articles of Association of the Swiss National Guarantee Fund (NGF) have been in force since August 28, 2003 and were revised on May 20, 2022:
Authorities
The Swiss National Guarantee Fund (NGF) is subject to the supervision of the Federal Roads Office FEDRO (Art. 76b para. 2 of the Road Traffic Act SVG). The National Guarantee Fund of the Principality of Liechtenstein, whose tasks are carried out by the Swiss National Guarantee Fund, is subject to the supervision of the government (Art. 72b para. 2 SVG-FL).
The contributions of motor vehicle owners determined by the NGF to cover its expenses are subject to approval by the Swiss Financial Market Supervisory Authority FINMA (Art. 76a para. 2 SVG) and the Government of the Principality of Liechtenstein (Art. 72a para. 2 SVG-FL).
Passive legitimation
The NGF has passive legitimacy in a lawsuit to assert a claim arising from a traffic accident (Art. 76b Para. 1 SVG). An action must be brought against the NGF and not against its representative. Representatives of the NGF are, for example, Zurich Insurance Company Ltd or another member company.
According to Art. 38 of the Swiss Code of Civil Procedure (ZPO), the following courts have jurisdiction:
- Court at the place of the accident
- Court at the domicile or registered office of the defendant
- Court at the location of a branch of the NGF
For persons domiciled in Liechtenstein, in addition to the court at the place of the accident, the courts at the Liechtenstein domicile of the plaintiff and at the registered office or location of a branch of the NGF also have jurisdiction.
Subsidiarity
In the event of damage caused by unidentified or uninsured motor vehicles, trailers and bicycles, the NGF’s obligation to pay benefits is only of a subsidiary nature. It does not apply if injured parties can claim benefits from indemnity or social insurance (Art. 76 Para. 6 SVG). Injured parties must primarily rely on these insurances to cover their losses. The latter have no right of recourse against the NGF. The NGF is only liable for direct damage not covered by indemnity or social insurance that is owed under the Road Traffic Act.
Deductible
In the event of property damage caused by unidentified motor vehicles, trailers and bicycles (cf. Art. 76 SVG), a deductible of CHF 1000 per injured person applies. This does not apply if the injuring party is liable for significant personal injury resulting from the same events (Art. 52 Para. 3 VVV). Significant personal injury is deemed to exist if, according to objective standards, it necessitates a medical consultation (visit to a doctor or hospital).
If the accident occurred in Liechtenstein, a different regulation applies. According to the Liechtenstein Traffic Insurance Ordinance VVV, the deductible is EUR 500 or the equivalent in Swiss francs (Art. 53 para. 3).
Recourse
In all cases of damage, the NGF attempts to recover the costs from the party responsible. It has a full right of recourse to compensation paid. Compared to the claims payments, the recourse income generated is low, as in most cases the parties responsible for the accident cannot be identified.