The Rome II regulation stipulates that questions of limitation should be reserved to the substantive applicable law of the tort. Two recent developments point to answers to whether a court’s national code may override that and to whether there should be a specific regime for limitation in cross border motor claims in particular.
da Silva Martins v Dekra Claims Portgual is a very recent case in the European Court of Justice (CJEU) dealing with the first question. The Portuguese claimant’s vehicle was damaged in an accident in Spain in August 2015. He issued proceedings in Portugal in November 2016 to recover his uninsured losses.
The Rome II regulation on applicable law provides a clear general rule in article 4.1 that the applicable law in tort is that of “the country in which the damage occurs”, i.e. Spanish law in this instance. Article 15 sets out the scope of the applicable law, providing at (h) that it shall; govern “the manner in which an obligation may be extinguished and rules of prescription and limitation”.
On this basis, the claimant would clearly be out of time given the one year limitation period in Spanish law. He therefore sought to argue that the longer Portuguese limitation period of three years was an “overriding mandatory provision” which would displace the Spanish one year period. This possibility is allowed for under article 16: “Nothing in this regulation shall restrict the application of the provisions of the law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable”.
The point argued was referred to the CJEU. In its judgment of 31 January 2019, the Court confirmed that only a provision which “was of such importance in the national legal order that it justifies a departure from the law applicable … pursuant to Article 4” could be classified as a mandatory overriding one. The Portuguese law on limitation did not meet that threshold, meaning that Spanish limitation applied and the claim therefore failed.
The Court observed that “no other provision of EU law establishes specific requirements with regard to the limitation period for actions such as that at issue”. This passage links to the second relevant development, which is to be found in the ongoing debate on reforming the Motor Insurance Directive (MID).
Text dealing with a specific limitation period for cross-border motor claims was included, fairly late in the day, in the report on amending the Directive which was approved by the European Parliament on 13 February 2019. The proposal is for a period of at least four years to be set out in the Directive and to apply only to cross border claims.
This issue was not covered in the Commission’s 2018 REFIT review of MID, although it had been the subject of a Commission study in 2008 and of a resolution from the Parliament in 2017. Given that it seems likely that the UK’s future motor insurance law will at very least reflect the EU regime – and may even remain identical to it – the re-emergence of the prospect of a specific regime on limitation should be monitored. The failure of the da Silva Martins case strongly suggests that the process of amending MID is now the channel by which interests in favour this change are most likely to seek to pursue it.
Authored by Alistair Kinley, director of policy and government affairs