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Cross-Border Traffic Accidents in Europe: Diversity in the EU

Cross-Border Traffic Accidents in the European Union

Introduction

The slogan of the European Union is: Unity in diversity. The E.U. has 27 MS with unique languages, cultures, histories, and legal systems.  Every Member State has different laws on damages, limitation periods and standards for medical evidence.  For lawyers working in the field of cross border accidents it is important to understand these differences.

The answer to the question what happens if a Polish citizen on vacation in the Netherlands suffers a traumatic injury while driving through Belgium is  not so clear-cut.

According to Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (“Rome II”), a victim is entitled to compensation according to the law of the country where the accident occurred unless both parties have “their habitual residence” in another country or another country is “more closely connected” with the tort.

This means that an Italian injured by a Belgian driver on the streets of Belgium will apply Belgian law to her claim.  This scenario has become more common with the growing mobility of E.U. citizens and an increase in the number of cross-border accidents.

This article highlights a few substantive and technical differences in the law of torts as applied to cross-border accidents.

Specialization of lawyers in the field of personal injury law

The development of an experienced and qualified personal injury bar makes a big difference in the enforcement of legal rights of traffic accident victims.  In most European jurisdictions, the degree of specialization in personal injury law is fairly low.  This is not the case in England, Wales, Ireland, Scotland, The Netherlands, France, and Switzerland.

The most formidable European organisation for personal injury lawyers is PEOPIL (www.peopil.com) with members in all member states.  PEOPIL is a non-partisan organisation, focussing on dissemination of  knowledge of personal injury law, networking, access to justice for victims.   The PEOPIL Research Group has published books explaining the central components of personal injury litigation in different MS, and PEOPIL organizes periodic conferences throughout Europe for its members.

Limitation periods
Limitation periods can prevent claimants from obtaining remedies if they act too late after suffering injuries.  There are major differences among MS with respect to personal injury limitation periods.  Not only do limitation periods vary in amount of time, but there are variations as to the beginning of a limitation period, procedural requirements for stopping the running of a limitation period, and application to minors, disabled people, and victims.

In Spain, the limitation period for road traffic accidents is one year. In Italy, there is a 2-year limitation period for road traffic accidents.  Germany has a 3-year limitation period for actions in tort, but claims for pain and suffering have a limitation period of 30 years. Belgium has a limitation period of 3 years as well as a statute of repose with a limitation period of 30 years regardless of when the victim discovered his or her injury.

In all European jurisdictions the limitation period begins to run from the date of occurrence of the damage, which is usually the date of the accident.

In Belgium, the Netherlands, Italy and Spain, it is enough to send the defendant a registered letter with a written warning in which a victim unequivocally claims damages sustained as a result of the accident. It is not necessary to issue proceedings. In England, Wales, Ireland and Scotland, it is necessary to issue proceedings.

In the E.U., courts apply the limitation period of the country where the accident occurred even if the lawsuit is filed in a different MS.  The limitation period is generally considered to be a matter of substantive law except in the United Kingdom where there is uncertainty as to whether a court will apply the UK limitation period, as a matter of procedural law, instead of the limitation period of the country where the accident occurred.

Applying these principles to the hypothetical example, an Italian who was injured by another driver in Belgium and later files a lawsuit in Italy will have her case managed by an Italian court that applies the Belgian limitation period.  The need for lawyers in the E.U. to apply the limitation period of a different member states i.e., where the accident occurred, demonstrates the necessity for a high level of cooperation among lawyers in different jurisdictions.

Protection of minors
In most member states, minors and disabled people are under-protected. In Italy and Austria, the limitation period starts to run from the appointment of a legal representative. In The Netherlands, the limitation period starts to run from the date a minor turns 18 years old but there is no such protection for disabled people.  In France, the limitation period starts to run from the age of 18.  In France and Italy, the limitation period is suspended during a period of disability unless the disabled injured person is under the charge of someone capable of taking action.

Medical experts
Medical experts play an important role in case assessment and evaluation but there are wide differences with respect to requirements to act as medical experts, the form and content of medical reports, medical scales for the evaluation of injuries, and the use of experts and expert reports in court. There is no unified standard for expert evidence.

In most member states, there are no special courses or certificates for medical experts. The form and content of medical reports vary. In The Netherlands, Spain, and Belgium, experts report on injuries as well as the percentage of disability.  In The Netherlands, experts are appointed by both parties or by the judge. Luxembourg courts often rely on foreign experts from France, Belgium, or Germany. Some courts strongly rely on expert reports while others use them, only partially, to help in reaching a decision.

Awards for pain and suffering
In different Members States, the same kind of injuries with the same kind of impacts on victims’ lives may lead to completely different compensatory awards. Some member states allow unlimited non-pecuniary losses while other member states apply caps, fixed tariffs, and limits set by law. The latter include Spain and Italy with respect to road traffic accidents.  Denmark also has fixed maximum statutory awards.

Be Aware of differences and seek help
As compensation of damages for traffic accident injuries vary widely throughout the E.U. on the basis of different limitation periods, substantive laws, caps, admissibility standards for expert opinions, and networks among plaintiff’s lawyers. Lawyers working in this field should be aware of the procedural and substantive differences and seek help from lawyers in countries where the accident occurred.

If you need help in the Netherlands or have questions about Dutch law and cross border accidents contact antoinette.collignon@legaltree.nlhttp://www.legaltree.nl/en Continue reading