EU Aspects of Travel Law 23 June 2016 Hugh Mercer QC Essex Court Chambers, London Alphalex Avocats, Brussels

EU Law All EU legislation (generally in consolidated amended form) is available for free at eur-lex.europa.eu All CJEU case law is available at www.curia.eu, most conveniently by use of the regulation/directive number or case number

Might EU law be irrelevant in the event of a Brexit ? Article 50(3) TEU 2 year period but: Law applicable at the date of tort Article 267 TFEU until date of leaving Possible transitional access to CJEU post leaving? Disadvantage in some cases of lack of ability to refer to CJEU

Relevant types of EU law? Article 288 TFEU Directives Instructions to legislate In UK, either Acts or SIs Cannot be free standing post repeal of European Communities Act 1972 Regulations Directly applicable, i.e. akin to an Act of Parliament, e.g. Rome II General rule – Member States may not supplement/alter it’s provisions Case 40/69 Bollmann, paragraph 4 Member State implementing legislation: Would detract from simultaneous and uniform application May not conceal the EU nature of the rule Exception – ‘unless otherwise expressly provided’ E.g. English rule that foreign law ‘presumed’ to be same as English law – compatible with Rome II ?

Step 1: Obligation to insure motor vehicles Article 3(1) First Directive ‘Each Member State shall…take all appropriate measures to ensure that civil liability in respect of the use of vehicles normally based in its territory is covered by insurance’ Cover to extend to all Member States without additional charge: Case C- 556/13 Litsaka Scope of cover gradually refined How will Article 3(1) interact with a planned prohibition of whiplash claims ? What is the scope (public/private land etc) of compulsory insurance? Compare Cutter v Eagle Star [1998] 1 WLR 1647 with Case C-162/13 Vnuk

Step 2: Member States to set up Guarantee Fund Article 1(4) Second Directive Member States responsible for accidents in their own territory Victims entitled to approach Guarantee Fund directly – right to reasoned reply Member States shall apply its laws, regulations and administrative provisions Member State options: Compensation subsidiary or non-subsidiary, e.g. French law of impliqué Can exclude liability for voluntary passengers when prove that knew that uninsured Can limit/exclude compensation for damage to property by uninsured vehicle unless significant personal injury Can authorise EUR 500 excess for damage to property by uninsured vehicle

Step 3: Fourth Directive grants rights to victims at home for accidents abroad Direct right of action against insurance companies Insurers appoint claims representatives for each Member State Information centres – to allow victims to seek compensation Compensation bodies for dilatory insurers (no reasoned reply/claims rep) Unidentified vehicle/insurer – apply for compensation from compensation body in Member State of residence Jacobs v MIB [2011] 1 WLR 2609 Moreno v MIB for hearing in July 2016