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

2. 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 most conveniently by use of the regulation/directive number or case number

3. 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

4. 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 ?

5. 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

6. 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

7. 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