European Insurance Contract Law Project Group
The European Insurance Contract Law Project Group has been in existence on the Institute since August 1, 1999. The group is led by Jürgen Basedow, Director of the Institute, and is part of a previously existing “Study Group on a European Civil Code,” which is engaged in laying the groundwork for a European civil code. The activity of the group is supported by the Deutsche Forschungsgemeinschaft (a German research foundation) and the Max Planck Society.
As its first assignment, the project group undertook to ascertain the state of insurance law in each of the (then) fifteen member states of the European Union and Switzerland as well as the law of the European Community with the goal of using this comparative analysis as the groundwork for a later harmonisation of the legal regulations in these jurisdictions. At that time, it was generally acknowledged that the harmonisation of insurance law at the European Union level was not under consideration. A harmonisation proposal made by the EC Commission at the end of the 1970’s was never pursued by the Council. Rather, legislation was limited to the implementation of Community rules for the supervision of insurance companies within the European market. Alongside these efforts, only common rules for the private international law of insurance contracts existed. However, it became apparent that without a harmonisation of insurance contract law a true integration of the European insurance market would not be feasible. Particularly, the harmonised conflict of law provisions do not adequately support the free provision of services since the law of the policy holder is applicable in every case, thus scaring off insurers and discouraging insurance activity across national boundaries. At the same time, as the liberalisation of European insurance markets under standardised controls has achieved an essential precondition for cross-border insurance offers and both the internet and the introduction of the euro have facilitated the administration of international insurance policies, the interest in a harmonised law of insurance is likely to increase. Thus, it is not surprising that demands for harmonised insurance regulations are finding a growing audience.
The goal of the project group, therefore, is to complete the bulk of the comparative law research that necessarily precedes European harmonisation proposals. First, on the basis of detailed questionnaires, the insurance law regulations for affected nations were assessed and documented in individual reports. The questionnaire comprised approximately 140 specific areas of inquiry organised under the following headings: General Provisions, Contract Formation, Liability of the Insurer and Insured Interests, Duties of the Policy Holder before Occurrence of the Insured Event, Premium Payment Duties, Responsibilities and Obligations of the Parties in an Insured Event, Insurance on Account of a Third Party, Joint Insurance, Group Insurance, Policy Duration and Termination, and Prescription.
As illustrated by these headings, the project group concentrated its efforts on general principles of insurance law, i.e., regulations pertaining to more specialised branches were not the subject of inquiry. Namely, as the project group understood that the initial targets of a European wide harmonisation would likely be those branches of insurance law that are the common subject of regulation, they focused their work correspondingly. Adjunct to the collection of data, the project group undertook to complete a comparative law analysis whose aim, rather than simply noting and commenting upon differences, was the identification of contrasting regulatory schemes in order to facilitate harmonisation proposals suitable at a European-wide level. In the process, the project group also limited the scope of its policy recommendations. Namely, it is expected that any European-wide regulatory scheme will focus upon the determination of mandatory law. Merely optional provisions, which parties to a contract are free to deviate from, do not impede the freedom to provide services in the same manner as their compulsory counterparts and do not, therefore, demand an immediate harmonisation. Consequently, the comparative law synthesis dedicates its treatment primarily on compulsory law.
The country based reports as well as the comparative law synthesis, together with the insurance laws of the corresponding countries, have been published in three volumes under the title Europäisches Versicherungsvertragsrecht, edited by Jürgen Basedow and Till Fock in collaboration with Dorothée Janzen and published by Mohr Siebeck (Volumes I and II 2002, Volume III 2003).
The Institute is participating further in the “Restatement of European Insurance Contract Law” project group (for further information on the project, www.restatement.info). This group is a part of the “Joined Network on European Private Law (Network of Excellence within the Sixth Framework Programme of the EU)” and, in the area of insurance law, is working on a contribution towards the creation of a common frame of reference for European insurance law. The goal thereby is to create a model European regulation for compulsory and semi-compulsory insurance contract law based upon a comparative representation of member state insurance law. The draft of the model regulation will be structured by chapter and section and will contain concrete provisions in the form of articles of law that are individually supplemented with comments and comparative law notes according to the model of the Lando Principles.
As the articles and their corresponding comments are being drafted by the project group members, the Institute is preparing the comparative law notes for the individual provisions of insurance contract law. This effort is based considerably on the preliminary work completed by the Institute’s European Insurance Contract Law Project Group and in particular on the above-referenced work of Basedow and Fock, Europäisches Versicherungsvertragsrecht.
As its first assignment, the project group undertook to ascertain the state of insurance law in each of the (then) fifteen member states of the European Union and Switzerland as well as the law of the European Community with the goal of using this comparative analysis as the groundwork for a later harmonisation of the legal regulations in these jurisdictions. At that time, it was generally acknowledged that the harmonisation of insurance law at the European Union level was not under consideration. A harmonisation proposal made by the EC Commission at the end of the 1970’s was never pursued by the Council. Rather, legislation was limited to the implementation of Community rules for the supervision of insurance companies within the European market. Alongside these efforts, only common rules for the private international law of insurance contracts existed. However, it became apparent that without a harmonisation of insurance contract law a true integration of the European insurance market would not be feasible. Particularly, the harmonised conflict of law provisions do not adequately support the free provision of services since the law of the policy holder is applicable in every case, thus scaring off insurers and discouraging insurance activity across national boundaries. At the same time, as the liberalisation of European insurance markets under standardised controls has achieved an essential precondition for cross-border insurance offers and both the internet and the introduction of the euro have facilitated the administration of international insurance policies, the interest in a harmonised law of insurance is likely to increase. Thus, it is not surprising that demands for harmonised insurance regulations are finding a growing audience.
The goal of the project group, therefore, is to complete the bulk of the comparative law research that necessarily precedes European harmonisation proposals. First, on the basis of detailed questionnaires, the insurance law regulations for affected nations were assessed and documented in individual reports. The questionnaire comprised approximately 140 specific areas of inquiry organised under the following headings: General Provisions, Contract Formation, Liability of the Insurer and Insured Interests, Duties of the Policy Holder before Occurrence of the Insured Event, Premium Payment Duties, Responsibilities and Obligations of the Parties in an Insured Event, Insurance on Account of a Third Party, Joint Insurance, Group Insurance, Policy Duration and Termination, and Prescription.
As illustrated by these headings, the project group concentrated its efforts on general principles of insurance law, i.e., regulations pertaining to more specialised branches were not the subject of inquiry. Namely, as the project group understood that the initial targets of a European wide harmonisation would likely be those branches of insurance law that are the common subject of regulation, they focused their work correspondingly. Adjunct to the collection of data, the project group undertook to complete a comparative law analysis whose aim, rather than simply noting and commenting upon differences, was the identification of contrasting regulatory schemes in order to facilitate harmonisation proposals suitable at a European-wide level. In the process, the project group also limited the scope of its policy recommendations. Namely, it is expected that any European-wide regulatory scheme will focus upon the determination of mandatory law. Merely optional provisions, which parties to a contract are free to deviate from, do not impede the freedom to provide services in the same manner as their compulsory counterparts and do not, therefore, demand an immediate harmonisation. Consequently, the comparative law synthesis dedicates its treatment primarily on compulsory law.
The country based reports as well as the comparative law synthesis, together with the insurance laws of the corresponding countries, have been published in three volumes under the title Europäisches Versicherungsvertragsrecht, edited by Jürgen Basedow and Till Fock in collaboration with Dorothée Janzen and published by Mohr Siebeck (Volumes I and II 2002, Volume III 2003).
The Institute is participating further in the “Restatement of European Insurance Contract Law” project group (for further information on the project, www.restatement.info). This group is a part of the “Joined Network on European Private Law (Network of Excellence within the Sixth Framework Programme of the EU)” and, in the area of insurance law, is working on a contribution towards the creation of a common frame of reference for European insurance law. The goal thereby is to create a model European regulation for compulsory and semi-compulsory insurance contract law based upon a comparative representation of member state insurance law. The draft of the model regulation will be structured by chapter and section and will contain concrete provisions in the form of articles of law that are individually supplemented with comments and comparative law notes according to the model of the Lando Principles.
As the articles and their corresponding comments are being drafted by the project group members, the Institute is preparing the comparative law notes for the individual provisions of insurance contract law. This effort is based considerably on the preliminary work completed by the Institute’s European Insurance Contract Law Project Group and in particular on the above-referenced work of Basedow and Fock, Europäisches Versicherungsvertragsrecht.