Protection of visitors in accordance with the European Directive

The Fourth 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 the injured parties receive the required information for filing their claims and are able to contact the body responsible for settling their claim, the member states were obliged to set up information centres. These provide the injured party with the address of the responsible motor vehicle liability insurers and their claims representatives. If required in order to be able to process the claim, the information centres also provide the injured party with the name and address of the keeper of the vehicle driven by the person who caused the accident.

Directive 2009/103/EC obliges the member states to set up compensation bodies. These bodies provide injured parties with drop-down cover in the event that the regular claims settlement process fails: if the insurer has not nominated a claims representative, or if the claims representative does not provide the injured party with an offer of compensation or a reasoned response within a three-month period, the injured party can contact the compensation body in his/her country of residence. If the conditions are met, the compensation body settles the claim instead of the missing or defaulting claims representative. The same applies if the insurer responsible cannot be determined within two months because the person who caused the accident or the vehicle being driven cannot be identified, or if the vehicle was being driven without insurance.

Implementation of the Motor Insurance Directive in Switzerland

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.

For accidents that take place in Switzerland, Art. 79a to d of the SVG are largely applicable in full. In such cases, the information centre informs the injured party with which regulatory body he/she can file his/her claim. Swiss motor vehicle liability insurers are obliged to respond to claims by injured parties within three months, otherwise the compensation body settles the claim in their place.

Art. 79a to d of the SVG do not apply in the EEA member states. In fact, Directive 2000/26/EC obliged the member states to implement the provisions for the protection of visitors only as regards the other member states. Switzerland does not therefore fall within the area of applicability of the EEA member states' national provisions for the protection of visitors, even though it has implemented an EEA-compatible legal regulation.

In order to avoid a situation where the Swiss legislation only protects injured parties resident in the EEA, but not injured parties resident in Switzerland (since Directive 2000/26/EC does not oblige insurers based in the EEA to nominate claims representatives in Switzerland), Swiss legislators have foreseen in Art. 79e that Art. 79a to d of the SVG are only applicable to another country if that country grants Switzerland reciprocal rights. At present, only Liechtenstein grants Switzerland such reciprocal rights.

In order to try to help get the protection of visitors in place for the EEA member states despite these legal hurdles, the NBI, using the powers conferred upon it by Art. 76b, para. 5b of the SVG, has concluded bilateral protection of visitors agreements under private law with its partner organisations in the EEA. These agreements ensure a level of protection for injured parties comparable to that provided by the Directive in that they oblige the acceding insurers to nominate claims representatives throughout the whole EEA as well as in Switzerland. However, the agreements expressly exclude access to the compensation body.

Implementation of the Motor Insurance Directive in Liechtenstein

As a member of the EEA, Liechtenstein was also obliged to implement the provisions of Directive 2000/26/EC into its national law. As regards the protection of visitors, there is full reciprocity between Liechtenstein and the other EEA member states.