Directives issued by the European Union are legislative acts which guide the Member States to act in a particular way in order to achieve a uniform result. Unlike European Union Regulations, Directives do not, generally, have a direct effect into national legal order and the Member States have the freedom to choose how to embody them into domestic law. Sometimes the aim and the content of a Directive are not adequately, or sometimes only partially, transposed into the national legal order. Additionally, further difficulties may arise in effectively transposing a Directive into domestic law in case the provisions of a Directive are interpreted by the Court of European Union as having a certain meaning which the national legislator did not have in mind at the time of the enactment of the transposing legislation. An example of this situation can be found in the transposition of the Motor Insurance Directives (now consolidated in Directive 2009/103/EC (the “Motor Insurance Directive of 2009”)) in the Cypriot legal order.
This article will point out a violation in the transposition of the provisions of the Motor Insurance Directive of 2009 in Cyprus which relates to vehicle accidents taking place on private land.
Article 3 of the Cypriot Law of Motor Vehicles (Third party liability insurance) of 2000, Law 96(I)/2000 (the “Third-Party Motor Insurance Law”) provides that it is illegal to drive a car on a road without having a Motor Third Party Liability Insurance.
Moreover, Article 4 of the Third-Party Motor Insurance Law, provides that a motor policy which covers third party liability must provide cover for accidents happening on a road.
The definition of the word “road” according to article 2 of the Third-Party Motor Insurance Law is as follows: “Road means, any road, square, open space as well as any space where the public has access [. . .]”.
It seems that the definition of the word “road” is wide enough as to include places that would not be normally describes as roads, like car parks and other places in which the public has access. However, it can be concluded that Motor Third Party Liability Insurance in Cyprus is not required to cover accidents happening when vehicles are used in purely private places where the public does not have access, since such private places, obviously, do not fulfill the definition of a “road”.
Contrary to what is stated above, when the issue of accidents on private land was examined by the Court of Justice of the European Union (the “CJEU”) in Damijan Vnuk v Zavarovalnica Triglav Case (2014) C‑162/13, in which an accident took place while both the claimant and the defendant were on a private land, the CJEU concluded that the concept of “use of vehicles” mentioned in the Motor Insurance Directives covers any use of a vehicle that is consistent with its normal function. Later in Nunez Torreiro v AIG Europe Ltd Case (2017) C-334/16 and Rodriques de Andrade v Proenca Salvador (2017) C-514/16 the CJEU explicitly stated that the concept of “use of vehicles”, and consequently the obligation to insure against third party liability, is not limited to the use of a vehicle in public places but on private land as well, and in fact on any kind of terrain.
Despite the above developments, legislation in Cyprus has not been amended to include an obligation to have a third-party insurance when a vehicle is driven on private land. Likewise Cypriot insurers are not obliged by Law to provide coverage for accident that happen not only in places where the public has access but also on private land, when they issue their motor policies.
Considering the above it seems obvious that Cyprus has not adequately transposed the provisions of the Motor Insurance Directive of 2009 regarding the case of accidents on private land, at least as subsequently interpreted by the CJEU in Vnuk and other cases, since the application of the provisions of Third-Party Motor Insurance Law depend on a geographical criterion, not existing in the Motor Insurance Directives.
Provided that Directives do not have a direct horizontal effect into national legal order, this means that insurers in Cyprus are not legally obliged to cover a claim for an accident which happened on private land even if they issued a motor policy covering the liability of the party at fault. If a case related to a vehicle accident on private land is brought before the Cypriot and or in case there is no insurer to cover the requested compensation or in case the insurer managew to escape its liability based on the fact that the accident happened on private land, then it is possible that an innocent third party might have a valid claim for damages against the Republic of Cyprus, for insufficient transposition of the provisions of the Directive based on the principle established in the case of Francovich v Italy.