8.7 Conclusion

The question of whether the position of the victim of an accident in international motor traffic is regulated satisfactorily can now be answered. I focus here on the Dutch injured party and confine myself to accidents in the Netherlands and other Member States. Before answering this question, it is relevant to point out that I have not investigated all aspects of this position in my study. The emphasis was on the procedural side of the protection of the victim, to the extent that this is regulated in the Directive of the EU, with minor excursions to aspects of international private law. The law on liability and on compensation which are also and equally important to the protection, have remained virtually undiscussed.

First, the question of the access to an entity in the country of residence of the victim to whom he may present his claim is addressed: the Dutch victim of an international traffic accident has a contact in his own country with whom he can settle the Toss - regardless of whether he suffered damages in his own country due to a visiting motor vehicle or was involved in an accident abroad. This appears to be so in most cases.

If the accident occurs in the Netherlands, he can either present his claim to the Dutch Bureau or the Waarborgfonds Motorverkeer. In the first case, the damages will, in most cases, be settled by a nominated correspondent, who will handle the claim under the responsibility of the Bureau. This implies that the injured party also will have a competent court in the Netherlands. Since the Wam does not distinguish between direct victims and parties having a right of recourse such as private and social insurers, the Jatter have equal access to the Waarborgfonds Motorverkeer.

If the Dutch resident is the victim of an accident abroad, the answer is more nuanced. He can - if the accident occurs in a Member State and the liable vehicle is insured and normally based in a Member State other than the Netherlands - apply to the claims representative appointed by the insurer in the Netherlands, but he cannot institute legal proceedings against him. In these cases, proceedings will have to be instituted against the insurer. To the extent that the injured party must be deemed to be an economically weak party, he falls within the jurisdiction of the Netherlands. This does not apply to parties that cannot be deemed to be economically weak, including in any event private and social insurers. They must institute proceedings in the Member State of establishment of the insurer.

If there is no claims representative or if the liable vehicle is uninsured or not identified, the directly injured party can apply to the Schadevergoedingsorgaan, the Dutch compensation body. This will initially, if the insurer has not appointed a claims representative, only try to move the insurer to give a reasoned response. In other cases, the Schadevergoedingsorgaan will settle the claim. The ambiguity of the term 'reasoned response' makes the protection of the compensation body less effective.

If for an accident in another Member State an uninsured motor vehicle from a non-Member State can be held responsible, the Dutch victim will also have access to the Dutch Schadevergoedingsorgaan. This is not the case however, if the vehicle was insured. In that case, the Dutch injured party must apply to the Bureau of the Member State of the accident.

Dutch victims of accidents in non-Member States caused by vehicles not normally based or insured in the Netherlands can only apply to a party in the Netherlands if the accident occurred in a country participating in the green card system, and the vehicle is normally based and insured in another Member State and the liable person has cover in that country. In that case, the injured party can apply to the claims representative, or - if there is none - to the Schadevergoedingsorgaan. In other cases, the Dutch injured party has no alternative but to apply to the insurer of the vehicle or to the guarantee fund of the country of the accident.

Regarding the minimum cover to be provided by the insurer, the Bureau and the guarantee fund, it is noted that this is in general adequate, certainly since the adjustment of the insured sum pursuant to the 5th Directive, although the strongly varying amounts in the respective Member States lead to important differences in the treatment of victims. These differences in treatment of victims are reinforced by varying liability and compensation regimes, but this aspect falls outside the scope of this study. The different levels of protection provided by the guarantee funds lead to differences in treatment of otherwise similar victims. Especially Dutch victims of accidents in other Member States, caused by vehicles normally based there, but uninsured or unidentified, may be faced with an unpleasant surprise.

It may be derived from the case law of the CJEC that one of the objectives of the European Union is to ensure comparable treatment of victims of traffic accidents, regardless of where in the Union the accident takes place. Based on this study, it can be concluded that this comparable treatment is more a mantra than a result that can be achieved on the basis of current EU law.